Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the November 30, 2006 Decision^[1] and April 30, 2007 Resolution^[2] of the Court of Appeals in CA-G.R. SP No. 93570.

The relevant facts are culled from the records.

John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial Court, Branch 254, Las Piñas City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial partition of the properties of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C. Calabia, while petitioner Anthony is the son of decedent Fidel with his second wife, petitioner Vilma.

On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714 (84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without prejudice to the rights of creditors or mortgagees thereon, if any;
   
   
2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded to be reimbursed by the defendants to the plaintiff;
   
   
3. Costs against the defendants.
   

SO ORDERED.^[3]

The decision became final on March 15, 2004.^[4]

As the parties failed to agree on how to partition among them the land covered by TCT No. 383714 (subject land), respondent sought its sale through public auction, and petitioners acceded to it.^[5] Accordingly, the RTC ordered the public auction of the subject land.^[6] The public auction sale was scheduled on May 31, 2003 but it had to be reset when petitioners refused to include in the auction the house (subject house) standing on the subject land.^[7] This prompted respondent to file with the RTC an Urgent Manifestation and Motion for Contempt of Court,^[8] praying that petitioners be declared in contempt.

The RTC denied the motion in an Order^[9] dated August 30, 2005, for the reason that petitioners were justified in refusing to have the subject house included in the auction, thus:

The defendants [petitioners] are correct in holding that the house or improvement erected on the property should not be included in the auction sale.

A cursory reading of the aforementioned Decision and of the evidence adduced during the ex-parte hearing clearly show that nothing was mentioned about the house existing on the land subject matter of the case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise did not mention anything about the house. Undoubtedly therefore, the Court did not include the house in its adjudication of the subject land because it was plaintiff himself who failed to allege the same. It is a well-settled rule that the court can not give a relief to that which is not alleged and prayed for in the complaint.

To hold, as plaintiff argued, that the house is considered accessory to the land on which it is built is in effect to add to plaintiff's [a] right which has never been considered or passed upon during the trial on the merits.

In the absence of any other declaration, obvious or otherwise, only the land should be partitioned in accordance to [sic] the aforementioned Decision as the house can not be said to have been necessarily adjudicated therein. Thus, plaintiff can not be declared as a co-owner of the same house without evidence thereof and due hearing thereon.

The Decision of the Court having attained its finality, as correctly pointed out, judgment must stand even at the risk that it might be erroneous.

WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is hereby DENIED for lack of merit.

SO ORDERED.^[10]

The RTC, in its Order dated January 3, 2006, denied respondent's Motion for Reconsideration.^[11]

Respondent filed with the CA a Petition for Certiorari^[12] where he sought to have the RTC Orders set aside, and prayed that he be allowed to proceed with the auction of the subject land including the subject house.

In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit:

WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, and the sheriff is ordered to proceed with the public auction sale of the subject lot covered by TCT No. 383714, including the house constructed thereon.

SO ORDERED.^[13] (Emphasis supplied.)

Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution^[14] of April 30, 2007.

Hence, the present petition on the sole ground that the CA erred in holding that the RTC committed grave abuse of discretion in denying the motion for contempt of court.

The assailed CA Decision and Resolution must be modified for reasons other than those advanced by petitioners.

The contempt proceeding initiated by respondent was one for indirect contempt. Section 4, Rule 71 of the Rules of Court prescribes the procedure for the institution of proceedings for indirect contempt, viz:

Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (Emphases supplied.)

Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect contempt proceeding are a) that it be initiated by way of a verified petition and b) that it should fully comply with the requirements for filing initiatory pleadings for civil actions. In Regalado v. Go,^[15] we held:

As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with the requirements for the filing of initiatory pleading, is mandatory x x x:

This new provision clarifies with a regularity norm the proper procedure for commencing contempt proceedings. While such proceeding has been classified as special civil action under the former Rules, the heterogenous practice tolerated by the courts, has been for any party to file a motion without paying any docket or lawful fees therefore and without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of this amended section.

x x x x

Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a formal charge by the offended court, all charges shall be commenced by a verified petition with full compliance with the requirements therefore and shall be disposed in accordance with the second paragraph of this section.

x x x x

Even if the contempt proceedings stemmed from the main case over which the court already acquired jurisdiction, the rules direct that the petition for contempt be treated independently of the principal action. Consequently, the necessary prerequisites for the filing of initiatory pleadings, such as the filing of a verified petition, attachment of a certification on non-forum shopping, and the payment of the necessary docket fees, must be faithfully observed.

x x x x

The provisions of the Rules are worded in very clear and categorical language. In case where the indirect contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the requirements on initiatory pleadings is a prerequisite. Beyond question now is the mandatory requirement of a verified petition in initiating an indirect contempt proceeding. Truly, prior to the amendment of the 1997 Rules of Civil Procedure, mere motion without complying with the requirements for initiatory pleadings was tolerated by the courts. At the onset of the 1997 Revised Rules of Civil Procedure, however, such practice can no longer be countenanced.^[16] (Emphasis ours.)

The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by respondent. The latter did not comply with any of the mandatory requirements of Section 4, Rule 71. He filed a mere Urgent Manifestation and Motion for Contempt of Court, and not a verified petition. He likewise did not conform with the requirements for the filing of initiatory pleadings such as the submission of a certification against forum shopping and the payment of docket fees. Thus, his unverified motion should have been dismissed outright by the RTC.

It is noted though that, while at first the RTC overlooked the infirmities in respondent's unverified motion for contempt, in the end, it dismissed the motion, albeit on substantive grounds. The trouble is that, in the CA decision assailed herein, the appellate court committed the same oversight by delving into the merits of respondent's unverified motion and granting the relief sought therein. Thus, strictly speaking, the proper disposition of the present petition ought to be the reversal of the CA decision and the dismissal of respondent's unverified motion for contempt filed in the RTC for being in contravention of Section 4, Rule 71.

However, such simplistic disposition will not put an end to the dispute between the parties. A seed of litigation has already been sown that will likely sprout into another case between them at a later time. We refer to the question of whether the subject house should be included in the public auction of the subject land. Until this question is finally resolved, there will be no end to litigation between the parties. We must therefore deal with it squarely, here and now.

The RTC and the CA differed in their views on whether the public auction should include the subject house. The RTC excluded the subject house because respondent never alleged its existence in his complaint for partition or established his co-ownership thereof.^[17] On the other hand, citing Articles 440,^[18] 445^[19] and 446^[20] of the Civil Code, the CA held that as the deceased owned the subject land, he also owned the subject house which is a mere accessory to the land. Both properties form part of the estate of the deceased and are held in co-ownership by his heirs, the parties herein. Hence, the CA concludes that any decision in the action for partition of said estate should cover not just the subject land but also the subject house.^[21] The CA further pointed out that petitioners themselves implicitly recognized the inclusion of the subject house in the partition of the subject land when they proposed in their letter of August 5, 2004, the following swapping-arrangement:

Sir:

Thank you very much for accommodating us even if we are only poor and simple people. We are very much pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Piñas, on the sharing of one-third (1/3) each of a land covered by Transfer Certificate of Title No. 383714 (84191) in Las Piñas City.

However, to preserve the sanctity of our house which is our residence for more than twenty (20) years, we wish to request that the 1/3 share of John Nabor C. Arriola be paid by the defendants depending on the choice of the plaintiff between item (1) or item (2), detailed as follows:

(1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x.

(2) Cash of P205,700.00 x x x.

x x x x.^[22]

We agree that the subject house is covered by the judgment of partition for reasons postulated by the CA. We qualify, however, that this ruling does not necessarily countenance the immediate and actual partition of the subject house by way of public auction in view of the suspensive proscription imposed under Article 159 of The Family Code which will be discussed forthwith.

It is true that the existence of the subject house was not specifically alleged in the complaint for partition. Such omission notwithstanding, the subject house is deemed part of the judgment of partition for two compelling reasons.

First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is deemed part of the subject land. The Court quotes with approval the ruling of the CA, to wit:

The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house constructed on the subject lot was not alleged in the complaint and its ownership was not passed upon during the trial on the merits, the court cannot include the house in its adjudication of the subject lot. The court further stated that it cannot give a relief to^[sic] which is not alleged and prayed for in the complaint.

We are not persuaded.

To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule on accession. In general, the right to accession is automatic (ipso jure), requiring no prior act on the part of the owner or the principal. So that even if the improvements including the house were not alleged in the complaint for partition, they are deemed included in the lot on which they stand, following the principle of accession. Consequently, the lot subject of judicial partition in this case includes the house which is permanently attached thereto, otherwise, it would be absurd to divide the principal, i.e., the lot, without dividing the house which is permanently attached thereto.^[23] (Emphasis supplied)

Second, respondent has repeatedly claimed that the subject house was built by the deceased.^[24] Petitioners never controverted such claim. There is then no dispute that the subject house is part of the estate of the deceased; as such, it is owned in common by the latter's heirs, the parties herein,^[25] any one of whom, under Article 494^[26] of the Civil Code, may, at any time, demand the partition of the subject house.^[27] Therefore, respondent's recourse to the partition of the subject house cannot be hindered, least of all by the mere technical omission of said common property from the complaint for partition.

That said notwithstanding, we must emphasize that, while we treat the subject house as part of the co-ownership of the parties, we stop short of authorizing its actual partition by public auction at this time. It bears emphasis that an action for partition involves two phases: first, the declaration of the existence of a state of co-ownership; and second, the actual termination of that state of co-ownership through the segregation of the common property.^[28] What is settled thus far is only the fact that the subject house is under the co-ownership of the parties, and therefore susceptible of partition among them.

Whether the subject house should be sold at public auction as ordered by the RTC is an entirely different matter, depending on the exact nature of the subject house.

Respondent claims that the subject house was built by decedent Fidel on his exclusive property.^[29] Petitioners add that said house has been their residence for 20 years.^[30] Taken together, these averments on record establish that the subject house is a family home within the contemplation of the provisions of The Family Code, particularly:

Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.

Article 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (Emphasis supplied.)

One significant innovation introduced by The Family Code is the automatic constitution of the family home from the time of its occupation as a family residence, without need anymore for the judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153 specifically extend the scope of the family home not just to the dwelling structure in which the family resides but also to the lot on which it stands. Thus, applying these concepts, the subject house as well as the specific portion of the subject land on which it stands are deemed constituted as a family home by the deceased and petitioner Vilma from the moment they began occupying the same as a family residence 20 years back.^[31]

It being settled that the subject house (and the subject lot on which it stands) is the family home of the deceased and his heirs, the same is shielded from immediate partition under Article 159 of The Family Code, viz:

Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (Emphasis supplied.)

The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this end, it preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions on its partition: first, that the heirs cannot extra-judicially partition it for a period of 10 years from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing therein; and second, that the heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling reasons therefor. No compelling reason has been alleged by the parties; nor has the RTC found any compelling reason to order the partition of the family home, either by physical segregation or assignment to any of the heirs or through auction sale as suggested by the parties.

More importantly, Article 159 imposes the proscription against the immediate partition of the family home regardless of its ownership. This signifies that even if the family home has passed by succession to the co-ownership of the heirs, or has been willed to any one of them, this fact alone cannot transform the family home into an ordinary property, much less dispel the protection cast upon it by the law. The rights of the individual co-owner or owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home.

Set against the foregoing rules, the family home -- consisting of the subject house and lot on which it stands -- cannot be partitioned at this time, even if it has passed to the co-ownership of his heirs, the parties herein. Decedent Fidel died on March 10, 2003.^[32] Thus, for 10 years from said date or until March 10, 2013, or for a longer period, if there is still a minor beneficiary residing therein, the family home he constituted cannot be partitioned, much less when no compelling reason exists for the court to otherwise set aside the restriction and order the partition of the property.

The Court ruled in Honrado v. Court of Appeals^[33] that a claim for exception from execution or forced sale under Article 153 should be set up and proved to the Sheriff before the sale of the property at public auction. Herein petitioners timely objected to the inclusion of the subject house although for a different reason.

To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of the judgment of co-ownership and partition. The same evidence also establishes that the subject house and the portion of the subject land on which it is standing have been constituted as the family home of decedent Fidel and his heirs. Consequently, its actual and immediate partition cannot be sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola, or until March 10, 2013.

It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public auction of the portion of the subject land covered by TCT No. 383714, which falls outside the specific area of the family home.

WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and April 30, 2007 Resolution of the Court of Appeals are MODIFIED in that the house standing on the land covered by Transfer Certificate of Title No. 383714 is DECLARED part of the co-ownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola but EXEMPTED from partition by public auction within the period provided for in Article 159 of the Family Code.

No costs.

SO ORDERED.

Ynares-Santiago, Corona, Nachura, and Reyes, JJ., concur.

---

* In lieu of Justice Minita V. Chico-Nazario, per Special Order No. 484 dated January 11, 2008.

^[1] Penned by Associate Justice Hakim S. Abdulwahid with the concurrence of Associate Justices Andres B. Reyes, Jr. and Mariflor P. Punzalan Castillo; rollo, p. 96.

^[2] Id. at 115.

^[3] Rollo, p. 28.

^[4] CA Decision, id. at 98.

^[5] See RTC Order dated August 30, 2005, id. at 33.

^[6] Id.

^[7] Id.

^[8] Rollo, p. 20.

^[9] Surpa note 5.

^[10] Rollo, pp. 34-35.

^[11] Id. at 49.

^[12] Rollo, p. 51.

^[13] Id. at 105.

^[14] Id. at 115.

^[15] G.R. No. 167988, February 6, 2007, 514 SCRA 616.

^[16] Id. at 632-634, 636; see also Land Bank of the Philippines v. Listana, Sr., 455 Phil. 750, 758-759 (2003).

^[17] Supra note 5.

^[18] Article 440. The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially.

^[19] Article 445. Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belong to the owner of the land, subject to the provisions of the following articles.

^[20] Article 446. All works, sowing and planting are presumed made by the owner and at his expense, unless the contrary is proved.

^[21] CA Decision, rollo, p. 100.

^[22] Rollo, pp. 102-103.

^[23] CA Decision, rollo, p. 104.

^[24] Motion for Reconsideration, id. at 36; Petition for Certiorari, id. at 51.

^[25] Generosa v. Pangan-Valera, G.R. No. 166521, August 31, 2006, 500 SCRA 620, 628.

^[26] Article 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned.

^[27] Bravo-Guerrero v. Bravo, G.R. No. 152658, July 29, 2005, 465 SCRA 244, 266; De Guia v. Court of Appeals, 459 Phil. 447, 464 (2003).

^[28] Maglucot-aw v. Maglucot, 385 Phil. 720, 730 (2000).

^[29] Supra note 24.

^[30] Petition, rollo, p. 6.

^[31] Spouses Versola v. Court of Appeals, G.R. No. 164740, July 31, 2006, 497 SCRA 385, 392.

^[32] RTC Decision, rollo, p. 26.

^[33] G.R. No. 166333, November 25, 2005, 476 SCRA 280.