Judgment No. 309/2018/DS-PT dated october 17, 2018 on dispute over housing ownership and land use right, house reclaiming, dispute over gift deed and claim for declaration of notarized document null and void

THE SUPERIOR PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 309/2018/DS-PT DATED OCTOBER 17, 2018 ON DISPUTE OVER HOUSING OWNERSHIP AND LAND USE RIGHT, HOUSE RECLAIMING, DISPUTE OVER GIFT DEED AND CLAIM FOR DECLARATION OF NOTARIZED DOCUMENT NULL AND VOID

On October 17, 2018, the appellate trial is conducted at the office of the Superior People’s Court in Ho Chi Minh City to hear the civil case No. No. 166/2016/TLPT-DS dated August 10, 2016 on dispute over housing ownership and land use right, house reclaiming, dispute over gift deed and claim for declaration of notarized document null and void.

as the First Instance Civil Judgment No. 403/2016/DS-ST dated April 27, 2016 of the People’s Court of Ho Chi Minh City was appealed.

according to the Decision to Bring the Case to Appellate Trial No. 553/2016/QD-PT dated November 1, 2016 between litigants:

- Petitioner:  Mrs. Do Thi L, born in 1956, residing at: 56/6 Street 14/9, ward 5, VL city, Vinh Long province; (absent).

Authorized representative of Mrs. L (according to the letter of authorization dated August 6, 2012): Mr. Tran Minh D, born in 1941; residing at: No. 18/13 TH village, TH commune, HL district, Vinh Long province; (present).

Lawyer of Mrs. L: Mr. Tran Minh Hoan H - Lawyer of Hoan Hy Lawyer’s Office, Bar Association of Vinh Long province, (present).

- Respondent:  Mrs. Le Thi H1, born in 1969, residing at: 304 provincial road 10, neighborhood 4, BTD ward, BT district, Ho Chi Minh City; (present).

Authorized representative of Mrs. H1 (according to the letter of authorization dated August 6, 2017): Mr. Tran Van C, born in 1968; residing at: No. 53 (ground floor), ward 11, district 5, Ho Chi Minh City; (present).

- Persons with relevant rights and obligations:

1. Mr. NLQ1, died on January 3, 2018;

Successors to litigation rights and obligations of Mr. NLQ1, including 4 children of Mr. NLQ1:

1.1. Mrs. NLQ2, born in 1963; (absent).

1.2. Mrs. NLQ3, born in 1965; (absent).

1.3. Mrs. Le Thi H1, born in 1969; (present).

1.4. Mrs. NLQ4, born in 1973, (request for trial in absentia).

Both residing in: 304 provincial road 10, neighborhood 4, BTD ward, BT district, Ho Chi Minh City.

2. Mrs. NLQ2, born in 1963, residing at: 304 provincial road 10, neighborhood 14, BTD ward, BT district, Ho Chi Minh City; (absent).

Authorized representative of Mrs. NLQ2 (according to the letter of authorization dated April 3, 2012): Mr. Duong Thanh Nh, born in 1980; residing at: 53 NQ, ward 11, district 5, Ho Chi Minh City; (absent).

3. Mrs. NLQ3, born in 1965; (absent).

4. Mrs. NLQ4, born in 1973, (request for trial in absentia).

Both residing in: 304 provincial road 10, neighborhood 14, BTD ward, BT district, Ho Chi Minh City).

5. Mr. NLQ5 (DO THO HUU), born in 1953, (absent).

6. Mrs. NLQ6 (NGUYEN LIEN THI), born in 1952, (absent).

Co-address:

805 Decatur Stwest Minster, Colorado 8003 USA.

Authorized representative of Mr. NLQ5 and Mrs. NLQ6 (according to the letter of authorization of consular legalization No. 2414/HPH/2015 at Vietnamese Embassy in the USA dated August 20, 2015): Mr. Do Minh Tr, born in 1978, (request for trial in absentia).

7. Mr. NLQ7, born in 1983, (request for trial in absentia).

8. Mrs. NLQ8, born in 1943, (request for trial in absentia).

9. Mrs. NLQ9, born in 1986, (request for trial in absentia).

10. Mr. NLQ10, born in 968, (request for trial in absentia).

11. Mrs. NLQ11, born in 1965, (request for trial in absentia).

12. Mrs. NLQ12, born in 1963, (request for trial in absentia).

13. Mr. NLQ13, born in 1963, (request for trial in absentia).

Co-address: 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City).

14. Office NLQ14.

Address: 56/6 Street 14/9, ward 5, VL city, Vinh Long province; (absent).

Legal representative: Mrs. Tran Thi M - Chief of Office, (request for trial in absentia).

15. Office NLQ15,

Address: 136 NTB, NTB ward, district 1, Ho Chi Minh City.

Legal representative: Mr. Le Hong S - Chief of Office.

(request for trial in absentia).

- Appellant:

+ The respondent, Mrs. Le Thi H1.

* Persons with related interests and obligations: Mr. NLQ5 and Mrs. NLQ6.

THE CASE

Representation of Mrs. Do Thi L and her authorized representatives in the lawsuit petition dated December 28, 2011, statements, during the lawsuit settlement process and at the first instance court hearing:

Mr. Do Van D1 (died in 1973) and Mrs. Vo Thi Nh1 (died in 2011) are parents of Mrs. L. Mr. D1 and Mrs. Nh1 had 3 common children: Mrs. Do Thi L, Mr. NLQ5 and Do Huu B (died in 1976). After Mr. D1 died, Mrs. Mrs. Nh1 cohabited with Mr. NLQ1 and had 4 common children: Mrs. Le Thi H1, Mrs. NQL2, Mrs. NLQ3, and Mrs. NLQ4.

In 2000, Mr. NLQ5 and Mrs. NLQ6 (his wife) bought and gifted the house No. B15/14 village 8, BTD commune, BC district, Ho Chi Minh City (now is 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City). Mrs. Nh1 was granted the certificate of housing ownership and land use right No. 172/2003 on January 13, 2013 by the People’s Committee of BC district. This house is separate property of Mrs. Nh1, not marital property with Mr. NLQ1. Mr. NLQ1 certified this fact in the Acknowledgement of Separate Property Agreement dated May 28, 2012 (bearing certification of the People’s Committee of BTD commune, BC district).

On October 10, 2009, at Office NLQ14, Vinh Long province, Mrs. Nh1 made a will to leave this house to Mr. NLQ5 and Mrs. NLQ6. Under which, on April 19, 2011, Mr. NLQ5 and Mrs. NLQ6 made a contract to authorize Mrs. L to accept the legacy under the will after Mrs. Nh1 passes away.  On October 11, 2011, after Mrs. Nh1 passed away, Mrs. L accepted the legacy at Office NLQ15 according to the authorization of Mr. NLQ5 and Mrs. NLQ6. On November 9, 2011, Mr. NLQ5 and Mrs. NLQ6 made a gift deed for land use right and property on land at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City to Mrs. L.

Currently, this house has been used and managed by Mrs. Le Thi H1. Mrs. L requests the court to recognize that she has title to this house.

Besides, she refuses the counterclaim of Mrs. H1 and the independent claim of Mr. NLQ5 and Mrs. NLQ6.

Representation of the respondent, Mrs. Le Thi H1 and her authorized representative:

Mrs. Vo Thi Mrs. Nh1 is Mrs. H1’s mother. The house on 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City was bought by Mrs. Nh1 in 1999 for 35 taels of gold during marriage period with Mr. NLQ1. Mr. NLQ1 did not have his name on the title together with Mrs. Mrs. Nh1, because in this period, the law allowed a person to have his/her name solely on the title. Alternatively, since Mr. NLQ1 engaged in gambling, Mrs. Nh1 did not put the title of the house under his name together with her. As for the Acknowledgement of Separate Property Agreement dated May 28, 2002 made by Mr. NLQ1, Mrs. H1 did not know it and claims that this is a fake document.  She claims that she had lived in this house from the time when Mrs. Nh1 was still alive until Mrs. Nh1’s death, so, she is entitled to keep living here.  Mrs. H1 refuses to hand over the house to Mrs. L or Mr. NLQ5 and Mrs. NLQ6 upon their requests. Currently, Mrs. H1 does not live here frequently, but the persons below: Mr. NLQ7, Mrs. NLQ8, Mrs. NLQ9, Mr. NLQ10, Mrs. NLQ11, Mrs. NLQ12 and Mr. NLQ13 as summoned by the court.

Regarding the Mrs. Nh1’s will dated October 10, 2009 made at Office NLQ14, Vinh Long province; Mrs. H1 claims that this will is not objective because it was made when Mrs. Nh1 was decrepit.  Moreover, Mrs. Nh1 was hospitalized in Ho Chi Minh City at that time, so she could not present in Vinh Long to make such will.

Regarding the Authorization Contract made on April 19, 2011 at Office NLQ15 between Mr. NLQ5, Mrs. NLQ6 and Mrs. Do Thi L; Mrs. H1 claims that this contract contravenes laws and regulations, because when this contract was made, Mrs. Nh1 was still alive, but Mr. NLQ5 and Mrs. NLQ6 authorized Mrs. H1 to accept the legacy of Mrs. Nh1. Since Mrs. Nh1 did not die, the legacy had not been formed; such an authorization is deemed unlawful.  Therefore, the Declaration of Acceptance of the Legacy dated October 11, 2011 of Mrs. L is also illegal.

As for status of Mr. NLQ5, Mrs. H1 claims that the person named Mr. NLQ5 actually died in 1975. The person named Mr. NLQ5 in this case, is actually Mr. Do Huu Duc.   This man previously took the name of Mr. NLQ5 for the purpose of evading military service, so she claims that this man is not entitled to engage in this dispute.

According to above reasons, Mrs. H1 refuses the entire lawsuit petition of Mrs. L and the entire independent claim of Mr. NLQ5 and Mrs. NLQ6; and Mrs. H1 gives the counterclaim as follows:

1/ Annul the Mrs. Nh1’s will dated October 10, 2009 at Office NLQ14, Vinh Long province (notarization No. 22, volume 01 TP/CC-SC/DC).

2/ Annul the Authorization Contract dated April 19, 2011 at Office NLQ15, notarization No. 5876 between Mr. NLQ5, Mrs. NLQ6 and Mrs. Do Thi L.

3/ Annul the Declaration of Acceptance of the Legacy dated October 11, 2011 made at Office NLQ15, notarization No. 016363.

Representation of persons with relevant rights and obligations, Mr. NLQ5 and Mrs. NLQ6, represented by Mr. Do Minh Tr:

The house was bought and gifted to Mrs. Nh1 in 2002 by the married couple Mr. NLQ5 and Mrs. NLQ6.  Although Mrs. Nh1 was granted the certificate of ownership, actually, Mrs. Nh1 only had her name on the title on behalf of Mr. NLQ5 and Mrs. NLQ6, because at that time the law did not permit a foreigner to has his/her name on the title of a house, thus Mr. NLQ5 and Mrs. NLQ6 let Mrs. Nh1 have his/her name on the title on their behalf, this was only the verbal agreement in the family, not in writing.

On October 10, 2009, Mrs. Nh1 made a will that after she dies, this house will be left to Mr. NLQ5 and Mrs. NLQ6 for exclusive use and disposal.

On October 11, 2011, Mr. NLQ5 and Mrs. NLQ6 completed paperwork for acceptance of legacy at Office NLQ15, Ho Chi Minh City. Mrs. L signed this Declaration of Acceptance of the Legacy. When the Declaration of Acceptance of the Legacy was made, the law did not permit a foreigner to has his/her name on the title of a house, Mr. NLQ5 signed the gift deed to gift Mrs. L this house, Mr. NLQ5 and Mrs. L could not remember detailed contents and date on which the gift deed was made, they only remember it primarily states that they let Mrs. L have her name on the title of a house on their behalf.

Regarding identity of Mr. NLQ5, from the date he had stayed in Vietnam until he immigrated abroad, Mr. NLQ5 has still kept his name with adequate supporting documents on judicial and civil status affairs as per the Vietnam’s law and the home country. The claim that Mr. NLQ5 took name of another person is only a one-sided opinion of the respondent. Moreover, this matter is not important, because civil status affairs of Mr. NLQ5 are recognized by the law. The change of name and identity matters of Mr. NLQ5 shall only be valid whenever the competent authority so declares it.

In 2015, Mr. NLQ5 and Mrs. NLQ6 returned to Vietnam and required Mrs. L and Mrs. H1 to return the house but they refused, so, Mr. NLQ5 and Mrs. NLQ6 request:

1/ Annul the gift deed for land use right and property on land dated November 3, 2011 between Mr. NLQ5 and Mrs. NLQ6 and Mrs. Do Thi L, which was consularly legalized on November 9, 2011 at Vietnamese Embassy in the USA on November 9, 2011.

2/ Recognize the Mrs. Nh1’s will dated October 10, 2009 at Office NLQ14, Vinh Long province (notarization No. 22, volume 01 TP/CC-SC/DC).

3/ Compel Mrs. Le Thi H1 and Mrs. Do Thi L to return the land and house at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City to Mr. NLQ5 and Mrs. NLQ6.

Mr. NLQ5 and Mrs. NLQ6 do not have any further request.

Representation of person with relevant rights and obligations, Mr. NLQ3: The house at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City was bought by her parents, Mr. NLQ1 and Mrs. Nh1.  She disagrees with requests of Mrs. L and Mr. NLQ5 and Mrs. NLQ6.

Representation of person with relevant rights and obligations, Mr. NLQ4: The house at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City was bought by her parents, Mr. NLQ1 and Mrs. Nh1.  She disagrees with requests of Mrs. L and Mr. NLQ5 and Mrs. NLQ6. And she requests for trial in her absentia during the resolution of the case.

Representation of persons with relevant rights and obligations, Mr. NLQ1 and Mrs. NLQ2, represented by Mr. Duong Thanh Nh: Mrs. NQL2 and Mr. NLQ1 have the same opinions with Mrs. H1.

Representation of persons with relevant rights and obligations Mr. NLQ7, Mrs. NLQ8, Mrs. NLQ9, Mr. NLQ10, Mrs. NLQ11, Mrs. NLQ12, and Mr. NLQ13:  They are only tenants for definite term in the house of Mrs. H1; they do not relate to the dispute in this case, so they request for trial in their absentia.

Representation of persons with relevant rights and obligations, Office NLQ14 and Office NLQ15:

At the time of signing notarization documents, the notarization petitioner has adequate legal capacity as per the law, is able to read and understand the notarization documents, voluntarily signs and appends fingerprints in the notarization documents in the witness of the notary.  The notary had verified all originals of the notarization dossier and identity of the notarization petitioner before signing, sealing and issuance of notarization documents. The Private Notary Office certified notarization documents in accordance with applicable provisions of law. The offices request the court to settle the case as per the law. And Office NLQ14 and Office NLQ15 request trial in absentia during the resolution of the case.

In the First Instance Civil Judgment No. 403/2016/DS-ST dated April 27, 2016, the People’s Court of Ho Chi Minh City judged:

Pursuant to Clause 3, Clause 7, Clause 9 Article 25; Clause 3 Article 33; Articles 34, 35, 128, 131; Article 159 and Article 202 of the Civil Procedure Code 2004 (amended in 2011) in Viet Nam;

Pursuant to Articles 581, 82, 649, Clause 2 Article 650, Articles 652, 653, 654, 658 of the Civil Code 2005; Clause 3 Article 167 of the Land Law 2013 in Viet Nam; Article 58 of the Law on Notarization 2014 in Viet Nam;

Pursuant to Article 17 of Resolution No. 01/2012/NQ-HDTP in Viet Nam dated June 13, 2012 on guidelines for certain laws and regulations on court fees and charges; Ordinance on Court Fees and Charges 2009 in Viet Nam.

Hereby judges: 

1- Accept the lawsuit petition of Mrs. Do Thi L:

+ Recognize the land use right and housing ownership at 116 DM street, neighborhood 7, BTD ward, BT district (old number the house No. B15/14 village 8, BTD commune, BC district, Ho Chi Minh City) of Mrs. Do Thi L. Mrs. L has the right to apply for issuance of certificate of land use right and housing ownership to the competent authority as per the law.

+ Compel Mrs. H1 and tenants at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City to return the house to Mrs. L promptly after the Judgment becomes legally effective.

2-  Reject the counterclaim of Mrs. Le Thi H1 as to the request:

+ Annul the Mrs. Nh1’s will dated October 10, 2009 at Office NLQ14, Vinh Long province (notarization No. 22, volume 01 TP/CC-SC/DC).

+ Annul the Declaration of Acceptance of the Legacy dated October 11, 2011 made at Office NLQ15, notarization No. 016363.

+ Annul the Authorization Contract dated April 19, 2011 at Office NLQ15, notarization No. 5876 between Mr. NLQ5, Mrs. NLQ6 and Mrs. Do Thi L.

3- Accept partial independent claim of Mr. NLQ5 and Mrs. NLQ6: Recognize the Mrs. Nh1’s will dated October 10, 2009 at Office NLQ14, Vinh Long province (notarization No. 22, volume 01 TP/CC-SC/DC).

Reject the independent claim of Mr. NLQ5 and Mrs. NLQ6 as to the request:

+ Annul the gift deed for land use right and property on land dated November 3, 2011 between Mr. NLQ5 and Mrs. NLQ6 and Mrs. Do Thi L, which was consularly legalized on November 9, 2011 at Vietnamese Embassy in the USA on November 9, 2011.

+ Compel Mrs. Le Thi H1 and Mrs. Do Thi L to return the land and house at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City to Mr. NLQ5 and Mrs. NLQ6.

In addition, the First Instance Judgment also decided the court fee and announced the appeal right to litigants as per the law.

On May 9, 2016, persons with relevant rights and obligations, Mr. NLQ5 and Mrs. NLQ6, filed an appeal against the entire First Instance Judgment No. 403/2016/DS-ST dated April 27, 2016 of the People’s Court of Ho Chi Minh City, requesting the Court of Appeal to correct the First Instance Judgment towards accepting the independent claim of Mr. NLQ5 and Mrs. NLQ6.

On May 10, 2016, the respondent, Mrs. Le Thi H1, filed an appeal against the entire First Instance Judgment for the following reason: The First Instance Judgment recognized the land use right and housing ownership at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City (old name: the house No. B15/14 village 8, BTD commune, BC district, Ho Chi Minh City) of Mrs. Do Thi L. This recognition contravenes laws and regulations; request the Court of Appeal to reconsider the case file and protect her legitimate rights and interests.

At the appellate court hearing, Mr. Do Minh Tr, authorized representative of Mr. NLQ5 and Mrs. NLQ6, sent a request for trial in absentia.

The respondent, Mrs. Le Thi H1, presents the appeal to the Trial Panel of the Court of Appeal to quash the First Instance Judgment and refer the case file to the Court of First Instance for retrial due to serious procedural errors.  According to Mrs. H1, the Acknowledgement of Separate Property Agreement dated May 28, 2012 of Mr. Le Dinh Trong is fake but it was certified by the People’s Committee of BTD commune, so the Court of First Instance committed error when not bring the People’s Committee of BTD ward into legal proceedings as a person with relevant rights and obligations. Besides, the items of evidence taken by the Court of First Instance are not sufficient to resolve the dispute in this case.

Argument of lawyer of the petitioner, Mrs. Do Thi L: The respondent, Mrs. Le Thi H1, could not provide any evidence to prove that the Acknowledgement of Separate Property Agreement dated May 28, 2012 of Mr. Le Dinh Trong is fake. However, this Acknowledgement bears the certification of the People’s Committee of BTD commune, there are substantial grounds for determining that the Acknowledgement of Separate Property Agreement made by Mr. Le Dinh Trong on May 28, 2012 is real. Mrs. H1 also could not provide any evidence to prove that Mrs. Vo Thi Mrs. Nh1 was not sound in mind when making the will on October 10, 2009. The will was made in the presence of two witnesses, including Mr. Tran Tien D, who qualified as a competent witness as prescribed in Article 654 of the Civil Code. Mr. NLQ5 and Mrs. NLQ6 are legatees of Mrs. Nh1 under her legal will of the house and land 116 DM street, neighborhood 7, BTD ward. On November 3, 2011, Mr. NLQ5 and Mrs. NLQ6 made a deed to gift land use right and property on land at 116 DM street, neighborhood 7, BTD ward to Mrs. Do Thi L to Mrs. Do Thi L and this deed was consularly legalized by Vietnamese Embassy in the USA. Mrs. L has not received the house and land under the gift deed because Mrs. H1 prevented it. Therefore, request the Trial Panel of the Court of Appeal to deny the appeals of the litigants: the respondent, Mrs. Le Thi H1 and persons with relevant rights and obligations, Mr. NLQ5 and Mrs. NLQ6; and uphold the First Instance Judgment.

Opinions of the procurator with respect to adherence to the law in the course of resolution of the case at appellate stage: The Judge - presiding judge and the Trial Panel have complied with the Civil Procedure Code; the litigants have performed their rights and obligations as prescribed in the Civil Procedure Code.

Regarding the appeals of the respondent Mrs. Le Thi H1 and persons with relevant rights and obligations Mr. NLQ5 and Mrs. NLQ6: there are sufficient grounds for determining that the house and land at 116 DM street, neighborhood 7, BTD ward, BT district was previously owned by Mrs. Vo Thi Nh1 and Mrs. Nh1 made a lawful will to leave it to Mr. NLQ5 and Mrs. NLQ6. Although Mr. NLQ5 and Mrs. NLQ6 made a deed to gift Mrs. Do Thi L land use right and property on land at 116 DM street, neighborhood 7, BTD ward but this deed does not become legally effective because it goes against laws and regulations.  The Court of First Instance accepted the lawsuit petition of Mrs. Do Thi L and rejected the independent claim of Mr. NLQ5 and Mrs. NLQ6; this decision does not conform to laws and regulations. On the other hand, the Court of First Instance compelled Mrs. Le Thi H1 to return the house without consideration of her contribution to the housing restoration and repair. This decision infringes the legitimate rights and interests of Mrs. H1 as per the law. Therefore, request the Trial Panel of the Court of Appeal to accept partial appeals of the respondent, Mrs. Le Thi H1 and persons with relevant rights and obligations, Mr. NLQ5 and Mrs. NLQ6; quash the First Instance Judgment and refer the case file to the People’s Court of Ho Chi Minh City to retry the case under first instance procedure.

JUDGEMENT OF THE COURT

[1] The appeals of Mrs. Le Thi H1 and Mr. NLQ5 and Mrs. NLQ6 were filed within the time limit required and in due process as per the law.

[2] At the appellate court hearing, as Mr. Do Minh Tr, authorized representative of Mr. NLQ5 and Mrs. NLQ6, requests for trial in his absentia, the court keeps conducting the hearing as prescribed in Clause 3 Article 296 of the Civil Procedure Code:

[3] With reference to court procedures:

[3.1] The Court of First Instance has determined correct disputed legal relationship, accept and resolve the case with proper jurisdiction and procedures as prescribed in the Civil Procedure Code.

[3.2] After the case was accepted under appellate procedure, the person with relevant rights and obligations, Mr. NLQ1, died on January 3, 2018. The successors to litigation rights and obligations of Mr. NLQ1 include: Mrs. NQL2, Mrs. NLQ3, Mrs. Le Thi H1, Mrs. NLQ4.

[4] With reference to content:

[4.1] The house and land at 116 DM street, neighborhood 7, BTD ward, BT district, Ho Chi Minh City (old number: the house No. B15/14 village 8, BTD commune, BC district) were previously owned by Mrs. Vo Thi Nh1 under certificate of housing ownership and land use right No. 172/2003 dated January 13, 2003 of the People’s Committee of BC district. On May 28, 2012, Mr. NLQ1 also made a Acknowledgement of Separate Property Agreement to acknowledge that the said house and land is the separate property of his wife Mrs. Vo Thi Nh1, bearing certification of the People’s Committee of BTD commune. Mrs. Le Thi H1 claims that Acknowledgement of Separate Property Agreement made by Mr. NLQ1 is fake but she could not provide any evidence to prove that. Accordingly, there are sufficient grounds for determining that the house and land at 116 DM street, neighborhood 7, BTD ward was previously the separate property of Mrs. Nh1.

[4.2] Mrs. Nh1 died on June 30, 2011, made a will dated October 10, 2009 at Office NLQ14, Vinh Long province stating that she would leave the housing ownership and land use right at the house No. B15/14 village 8, BTD commune, BC district to Mr. NLQ5 and Mrs. NLQ6 (the will). However, since Mrs. Nh1’s death, Mrs. Le Thi H1 has managed and used this house so far.

[4.3] Although Mrs. Le Thi H1 claims that Mrs. Nh1 made the will while she was not sound in mind and had bad health and was deceived, she could not show any item of evidence to prove that. Meanwhile, considering that:

[4.3a] With reference to format: The will made in writing in the presence of the witnesses as prescribed in Article 649 and Clause 2 Article 650 of the Civil Code 2005.

[4.3b] With reference to eligibility of the witnesses to the making of will: The will was made in the presence of two witnesses, Mr. Doan Ngoc A, born in 1950 and Mr. Tran Tien D, born in 1956. Mr. A and Mr. D are adults who have legal capacity; they are not legatees under the will or by operation of law of Mrs. Nh1; they also do not have rights and obligations to the legacy. Therefore, Mr. A and Mr. D qualify as competent witnesses as prescribed in Article 654 of the Civil Code.  Mrs. H1 claims that as Mr. Tran Tien D is the son-in-law of Mrs. Nh1 and the husband of Mrs. Do Thi L, they do not qualify as a competent witness to the making the will of Mrs. Nh1. So, there are insufficient grounds for accepting his eligibility for witness.

[4.3c] With reference to procedure for making the will: The will of Mrs. Nh1 was made at Office NLQ14 in accordance with the procedure prescribed in Article 658 of the Civil Code.

[4.3d] With reference to content: The will of Mrs. Nh1 contains details prescribed in Article 653 of the Civil Code.

[4.3dd] Accordingly, the will of Mrs. Nh1 made on October 10 meets all conditions as prescribed in Clause 1 Article 652 of the Civil Code: Mrs. Nh1 made the will when she was sound in mind, was not misled or coerced; the content of will does not go against the law and social ethics; and the format does not contravene laws and regulations. Accordingly, the Court of First Instance was well-grounded when determining that the will of Mrs. Nh1 dated October 10, 2009 at Office NLQ14, Vinh Long province is totally lawful. So, there is no basis to accept Mrs. Le Thi H1’s request for annulment of this will.

[4.4] After the Mrs. Nh1’s will was made, Mr. NLQ5 and Mrs. NLQ6 made a contract on April 19, 2011 at Office NLQ15 (notarization No. 5876) to authorize Mrs. Do Thi L to accept the legacy under the will.

Although Mr. NLQ5 and Mrs. NLQ6 made the contract for authorizing Mrs. L to accept the legacy under the Mrs. Nh1’s will while this will had not become effective, this will was not annulled or modified by Mrs. Nh1.  So, there is no basis to accept Mrs. Le Thi H1’s request for annulment of this contract.

[4.5] According to the above contract, on October 11, 2011, Mrs. L accepted the legacy at Office NLQ15. So, the acceptance of the legacy of Mr. NLQ5 and Mrs. NLQ6 through the authorized representative was made in due process prescribed in Article 58 of the Law on Notarization 2014, and the Declaration of Acceptance of the Legacy is deemed lawful. So, the request for annulment of the authorization contract dated April 19. 2011 at Office NLQ15 (notarization No. 5876) of Mrs. Le Thi H1 is ungrounded to accept.

[4.6] According to the legacy left by Mrs. Nh1 under the mentioned will, on November 3, 2011, Mr. NLQ5 and Mrs. NLQ6 made a deed to gift land use right and property on land at 116 DM street, neighborhood 7, BTD ward, BT district to Mrs. Do Thi L (the gift deed dated November 3, 2011). This gift deed was made in the USA by Mr. NLQ5 and Mrs. NLQ6 and was consularly legalized on November 9, 2011 by Vietnamese Embassy in the USA.

[4.6a] However, Vietnamese Embassy in the USA clearly states: “The Embassy assumes no responsibility for the content of the attached document”.

[4.6b] Meanwhile, Clause 1 Article 467 of the Civil Code 2005 stipulates: “Gifting real estate must be made in writing with notarization, authorization or registration, if so required by law on real estate”. Clause 3 Article 93 of the Law on Housing 2005 in Viet Nam stipulates: “Housing-related contract must be notarized or authenticated by the People’s Committee of district associated with a house in urban area, or authenticated by the People’s Committee of commune associated with a house in rural area”. And Point b Clause 1 Article 129 of the Land Law 2003 in Viet Namstipulates: “The promise to gift or the gift deed for land use right of households, individuals, overseas Vietnamese must be authenticated by the People’s Committee of commune, ward, town where the land is located or notarized by the public notary office”. Pursuant to Point 2.1 Section 2 of Joint Circular No. 04/2006/TTLT-BTP-BTNMT in Viet Nam dated June 13, 2006 of the Ministry of Justice, the Ministry of Natural Resources and Environment on guidelines for notarization, authentication of contracts and documents relating to rights of land users: “Contracts and documents related to real estate under which the real estate acquirer is a domestic organization, overseas Vietnamese, foreign organization or domestic individual must be notarized by public notary office”. So, the gift deed dated November 3, 2011 made by Mr. NLQ5 and Mrs. NLQ6 in the USA does not comply with Vietnamese law.

[4.6c] On the other hand, land use right and property on land at 116 DM street, neighborhood 7, BTD ward has not been handed over to Mrs. L as mentioned in the gift deed dated November 3, 2011, so this deed has not become effective as prescribed in Clause 2 Article 467 of the Civil Code 2005.

[4.6d] According to above analysis and judgment, the independent claim of Mr. NLQ5 and Mrs. NLQ6 for: annulment of the gift deed dated November 3, 2011 is well-grounded; the Court of First Instance’s rejection to this claim was considered not in accordance with laws and regulations.

[4.7] However, in order to consider the independent claim of Mr. NLQ5 and Mrs. NLQ6 for: compelling Mrs. Le Thi H1 and Mrs. Do Thi L to return the house and land at 116 DM street, neighborhood 7, BTD ward to Mr. NLQ5 and Mrs. NLQ6, it is necessary to verify and take more evidence to clarify the following matters:

[4.7a] Mr. NLQ5 and Mrs. NLQ6 has resided in the USA, it is advisable to clarify if Mr. NLQ5 and Mrs. NLQ6 are eligible to own house and land in Vietnam as prescribed in laws and regulations.

[4.7b] Before Mrs. Vo Thi Nh1 died, Mrs. Le Thi H1 had lived with Mrs. Nh1 at 116 DM street, neighborhood 7, BTD ward.  After Mrs. Nh1 died, Mrs. H1 has kept managing and staying in this house. Meanwhile, the request for measurement and valuation of property of Mrs. Do Thi L indicates: On December 14, 2012, the measurement shows that the land area is 65.6m2, compared with the drawing in certificate of housing ownership dated January 13, 2003 granted by the People’s Committee of BC district (old) which is 10.4m2 different (76m2-65.6m2), 76m2 of construction area with the yard area of 16.4m2 which was left vacant, now Mrs. Hue built a house thereon (case file p.313). At the appellate court hearing, Mrs. Le Thi H1 certifies that Mrs. H1 built the new house on the vacant yard, upgraded the floor and repaired the roof.

[4.7c] It is necessary to clarify if Mrs. H1 repaired and built the house; if Mrs. H1 had contribution to restoration and increase in the value of the house and land.

[4.7d] Consider that taking of these items of evidence to resolve the case thoroughly and comprehensively, protect rights and interests of the litigants as per the law, but the Court of First Instance failed to do that. At the appellate court hearing, it is also impossible to take these items.

[5] Accordingly, the Trial Panel of the Court of Appeal reaches a consensus on accepting the appeal of Mrs. Le Thi H1 and accepting partial appeal of Mr. NLQ5 and Mrs. NLQ6; quash the First Instance Judgment and refer the case file to the Court of First Instance for retrial under first instance procedure to protect lawful rights and interests of the litigants.

[6] Opinions of the lawyer of Mrs. Do Thi L made at the appellate court hearing are considered not in accordance with the above analysis and consideration, so the Trial Panel of the Court of Appeal does not accept these opinions.

[7] The appeals of the litigants, as per the law, are not subject to appellate civil court fees.

Pursuant to documents and evidence mentioned above;

HEREBY DECIDES

Pursuant to Clause 3 Article 308 and Article 310 of the Civil Procedure Code 2015 in Viet Nam

Accept the appeal of Mrs. Le Thi H1 and accept partial appeal of persons with relevant rights and obligations Mr. NLQ5 and Mrs. NLQ6;

- Quash the First Instance Judgment No. 403/2016/DS-ST dated April 27, 2016 of the People’s Court of Ho Chi Minh City and refer the case file to the People’s Court of Ho Chi Minh City for retrial under first instance procedure.

- Appellate civil court fee: Mrs. Le Thi H1 and Mr. NLQ5 and Mrs. NLQ6 are not obliged to pay.

+ Refund Mrs. Le Thi H1 VND 200,000 of the paid advance according to the receipt No. 02922 dated June 9, 2016 of Department of Civil Judgment Enforcement of Ho Chi Minh City.

+ Refund Mr. NLQ5 and Mrs. NLQ6 VND 200,000 each of the paid advance according to the receipt No. 02825 dated May 24, 2016 and 02826 dated May 20, 2016 of Department of Civil Judgment Enforcement of Ho Chi Minh City.

The Appellate Judgment takes effect from the date of pronouncement (October 17, 2018)./.