Judgment no. 709/2020/DS-PT dated july 28, 2020 on petition for declaring a notarized document

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 709/2020/DS-PT DATED JULY 28, 2020 ON PETITION FOR DECLARING A NOTARIZED DOCUMENT NULL AND VOID

On July 22 and 28, 2020, at the courthouse of the People’s Court of Ho Chi Minh City: No. 131, Nam Ky Khoi Nghia street, Ben Thanh ward, District 1, Ho Chi Minh city, an appellate trial was conducted to hear the case No. 230/2020/TLPT-DS dated February 24, 2020 on Petition for declaring a notarized document null and void”.

As the first instance civil judgment No. 619/2019/DS-ST dated December 31, 2019 and Decision on modification to the first instance judgment No. 02/2020/QD-SCBSBA dated January 10, 2020 of the People’s Court of District 10, Ho Chi Minh City was appealed.

According to the Decision to Bring the Case to Appellate Trial No. 3280/2020/QD-PT dated June 30, 2020, between the following litigants:

1. Plaintiff: Mrs. A, born in 1931 - died on August 01, 2019. The heirs of rights and duties of litigation of Mrs. A:

1.1. Mrs. B, born in 1955, Address: No. 69, street D1, Paris.

1.2. Mr. C, born in 1959;

Address: No. 34/17, Street D2, Ward 1, District 1, Ho Chi Minh City.

Ms. B and Mr. C authorized Mr. D, born in 1960 to act as their representative (Appearance in court). Address: No.45/25/10G, Street D3, Ward 2, District 2, Ho Chi Minh City. (Letter of Authorization dated August 24, 2019).

1.3. Mr. E, born in 1961 (Appearance in court);

Address: No.22, Street D4, Ward 3, District 3, Ho Chi Minh City.

1.4. Mr. G, born in 1963;

Address: No.649/58/64, Street D5, Ward 4, District 4, Ho Chi Minh City.

Represented by Ms. H, born in 1979 (Appearance in court).

Address: No.108, Street D6, Ward 5, District 5, Ho Chi Minh City. (Letter of Authorization dated November 16, 2019).

2. Defendant: Public Notary Office I, Ho Chi Minh City.

Address: No.25/5, Street D7, Ward 6, District 6, Ho Chi Minh City. Represented by Mr. K, born in 1978 (Appearance in court).

 (Letter of Authorization No. 341/UQ-CC4 dated November 07, 2019)

3. Persons with relevant rights and duties:

3.1. Mrs. L, born in 1963;

Address: No.7A/5/21, Street D8, Ward 7, District 7, Ho Chi Minh City.

Represented by Ms. M, born in 1989 and Mr. N1, born in 1995 (Appearance in court).

Co-address: No. 802, Floor 8, Building N2, No. 72 – 74, Street D9, Ward 8, District 8, Ho Chi Minh City.

Defender of Mrs. L – Mr./Ms. O – Lawyer of Ho Chi Minh City Bar Association.

3.2. Ms. S, born in 1999 (with Request for Trial in Absentia);

3.3. Mr. T, born in 1999 (with Request for Trial in Absentia);

3.4. Mr. U, born in 1997 (No appearance in court);

3.5. Mr. V, born in 2001 (Appearance in court)

3.6. Ms. X, born in 1951 (with Request for Trial in Absentia).

Co-address: No.7A/5/21, Street D8, Ward 7, District 7, Ho Chi Minh City.

4. Witnesses:

4.1. Mr. Y1, born in 1954 (No appearance in court);

Address: No.12, Street D10, Ward 9, District 9, Ho Chi Minh City.

4.2. Mr. Y2, born in 1957 (Appearance in court);

Address: No.7A/26, Street D8, Ward 7, District 7, Ho Chi Minh City. 4.3. Mr. Y3, born in 1977 (No appearance in court).

Address: No.7B/4/7, Street D8, Ward 7, District 7, Ho Chi Minh City.

5. Appellants: Mr. C, Mr. E and Mr. G are the heirs of rights and duties of litigation of Mrs A – Plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

According to the civil first instance judgment, the contents of the case are summarized as follows:

According to the petition dated March 15, 2018 and the supplemental petition dated April 16, 2018 of Mrs A (died on August 1, 2019) and the heirs of litigation rights and obligations of the plaintiff, Mrs A, including Mrs B, Mr. C, Mr. E and Mr. G:

The house No. 7A/5/21, Street D8, Quarter 7, District 7, Ho Chi Minh City belonged to Mrs A and Mr. N3 according to the certificate of housing ownership and land use right, with the original register No. 14620/2000 granted by People’s Committee of Ho Chi Minh City on November 28, 2000. Because of being over 70 years old, Mrs. A and Mr. N3 wished to lease out that house to earn money for living. In order to facilitate the lease, Mrs. A authorized Mr. N3 to enter into lease contracts with lessees on her behalf. On July 14, 2005, Mrs. A and Mr. N3 came to Public Notary Office I, Ho Chi Minh City in order for Mrs. A to authorize Mr. N3 who to take full enjoyment of that house. When Mrs. A came to the Public Notary Office I, Ho Chi Minh City with Mrs. L, her daughter-in-law, the authorization agreement to use the house No. 7A/5/21 somehow became a gift deed of the partial house 7A/5/21 D8 Street to Mr. N3 according to the gift deed No. 028386/HD-TCN dated September 7, 2005. This gift deed was made against Mrs. A’s will. On January 15, 2018, Mrs. A would like to extract a copy of the gift deed No. 028386/HD-TCN dated September 7, 2005 at the Public Notary Office I, Ho Chi Minh City, and on March 8, 2018, Mrs. A filed a lawsuit, requesting to declare that the notarized gift deed of the house No. 028386/HD-TCN between Mrs. A and Mr. N3 null and void.

During settlement of this case, Mrs. A found that Mr. N3 gave the gift deed of the full house No. 7A/5/21 street D8 to Mrs. L (her daughter-in-law) according to the contract No. 14077/HD-TCN dated April 17, 2007 certified by the Public Notary Office I, Ho Chi Minh City. Mrs. A realized that this was an unusual and unethical act, so on April 16, 2018 Mrs. A filed a supplemental lawsuit requesting to declare the gift deed of the house No. 14077/HD-TCN on April 17, 2007 between Mr. N3 and Mrs. L null and void, because the gift deed of the house No. 028386 is a result of the gift deed of the house No. 14077.

On August 1, 2019, Mrs. A died, the successors to Mrs. A's litigation rights and obligations, Ms. B, Mr. C, Mr. E and Mr. G, still maintain Mrs. A’s lawsuit and supplemental lawsuit to declare that the gift deed of the house No. 028386 and the gift deed of the house No. 14077 null and void, because it did not make sense that Mr. N3 (just a father-in-law) gave his daughter-in-law, Mrs. L, a great fortune, the house 7A. /5/21 D8, in addition:

Firstly, the notarized gift deed of the house No. 028386/HD-TCN between Mrs. A and Mr. N3 dated September 7, 2005 was against Mrs. A's will.

Secondly, upon signing of the notarized gift deed of the house No. 028386/HD-TCN between Mrs. A and Mr. N3 on September 7, 2005, the ID card of Mr. N3 had expired, so the gift deed No. 028386 also has no legal value.

Thirdly, at the time of signing the contract, Mrs. A and Mr. N3 were both 74 years old, the Public Notary Office neither sought forensic mental health assessment nor witnesses.

Fourthly, Mrs. L, the daughter-in-law, intentionally deceived Mrs. A into making a gift deed of the house.

The defendant, Public Notary Office I, Ho Chi Minh City authorized Ms. N4 to present as follows: On September 7, 2005, the Public Notary Office I, Ho Chi Minh City notarized a gift deed (a part of house 7A/ 5/21 Street D8) No. 028386/HD-TCN between the donor, Mrs. A and the donee, Mr. N3.

On April 17, 2007, the Public Notary Office I, Ho Chi Minh City notarized the gift deed of the house 7A/5/21 Street D8) No. 14077/HD-TCN between the donor, Mr. N3 and the donee, Mrs. L. The notarization of the above-mentioned 02 house gift deeds has been carried out by the notary in accordance with the statutory procedures and at the time of notarization, the transaction property met all the requirements to perform the transaction, the parties to the deed all had active legal capacity, the aforementioned acts were in accordance with the provisions of law, the parties confirmed that they read the deed, in line with their will and purposes of the parties when entering into the contract and agree with the content of the contract "I have read and agree" and voluntarily signed and appended fingerprints to the deed in front of the notary. Therefore, the Public Notary Office I, Ho Chi Minh City disagreed with the plaintiff’s petition for nullifying the 2 gift deeds of the house, and asked the Court to stop handling the case because the prescriptive period for initiating a lawsuit had expired under Article 132 of the Civil Code 2015 in Viet Nam.

Representation of person with related rights and obligations, Mrs. L: In 1987, she married Mr. G and moved to live in the family of her husband's parents, Mrs. A and Mr. N3, at the house 7A/5/21 D8 Street. In 2005, Mrs. A gave a part of the house 7A/5/21 D8 Street as a gift to Mr. N3. In 2007, Mr. N3 gifted the whole house mentioned above to Mrs. L under the house gift deed No. 14077/HD-TCN dated April 17, 2007 certified by the Public Notary Office. After being gifted the house, she repaired the house, applied for a construction permit and completed the construction in her name, and she was recognized by the People's Committee of District 7, Ho Chi Minh City for her valid land use rights and house ownership. Mr. G (her former husband) has a private property commitment, certified on November 4, 2010 at the People's Committee of District P7, District 7, Ho Chi Minh City. Now, she asks the Court to suspend the settlement of the case because the prescriptive period has expired.

Persons with related rights and obligations: Ms. S, Mr. T, Mr. U, Mr. V and Ms. X presented: Mr. T, Mr. U and Ms. X are the fixed tenants of the house 7A/5/21 D8 Street, they have nothing to do with ownership of the house 7A/5/21 D8 Street, Ward P7, District 7, Ho Chi Minh City.

At the first instance court hearing:

The defenders of Mr. E, Mr. G and Mr. C presented:

-Regarding prescriptive period for instituting lawsuits: When signing the authorization contract or gift deed of the house 7A/5/21 D8 Street, the Public Notary Office I, Ho Chi Minh City did not have any evidence that they gave Mrs. A a copy of the contract/deed, so she did not know the entire contents of the contract/deed; on the other hand, after Mr. N3's death, on January 15, 2018, Mrs. A would like to extract a copy of the gift deed of the house No. 028386/HD-TCN dated September 7, 2005 at the Public Notary Office I, Ho Chi Minh City. At that time, she knew the existence of the gift deed No. 028386/HD-TCN. So, on March 8, 2018, Mrs. A filed a lawsuit, requesting to declare that the notarized gift deed of the house No. 028386/HD- TCN between Mrs. A and Mr. N3 null and void, because Mrs. A was deceived.

- Three documents kept at the People's Committee of District P7, District 7, Ho Chi Minh City, including: The gift deed of house dated August 25, 2005; application for confirmation of real estate status to transfer real estate ownership dated July 13, 2005 and Mr. G's commitment of private property dated November 4, 2010, confirming the house 7A/5/21 D8 Street was the private property of Mrs. L. These documents are not well-grounded to determine that before going to the Notary Public Office I, Ho Chi Minh City, in July and August 2005, Mrs. A had the will to give Mr. N3 the whole house 7A/5/21 D8 Street, because the original documents could not be identified.

Mr. D, representing Ms. B and Mr. C, added: In the gift deed No. 028386/HD-TCN dated September 7, 2005 made by the Public Notary Office I, the title of the contract was the gift deed of the house but at the end of the contract, it was written as the seller and the buyer. Thus, this civil transaction did not comply with the statutory form, so it was void according to Article 129 of the Civil Code 2015.

Ms. H, on behalf of Mr. G, presented: Mr. G learned that Mr. N3 loved his two grandsons, who are the children of Mr. G and Mrs. L, so Mr. N3 made a gift deed of the entire house 7A/5/21 D8 Street to Mrs. L., but in fact, this house still belongs to Mr. N3. Mrs. L used this house gift deed as a security for Mr. N3's two grandsons to be financially eligible to study abroad, so this is a fake contract according to Article 124 of the Civil Code 2015.

The defendant, Public Notary Office I, Ho Chi Minh City authorized Ms. N4 to present as follows: Since the lawsuit petition of Mrs. A and her successors to legal rights and obligations, Ms. B, Mr. C, Mr. G and Mr. E has been instituted after the prescriptive period, the defendant requests the Trial Panel to suspend the settlement of the case because the prescriptive period for initiating a lawsuit has expired under Clause 1, Article 132 of the Civil Code 2015.

The defender of the legal rights and interests of Ms. Nguyen Thi Bach Ngan presented: Mrs. L was gifted the whole house by Mr. N3 at 7A/5/21 D8 Street under the gift deed of the house No. 14077/HD-TCN, notarized by the notary of the Public Notary Office I, Ho Chi Minh City on April 17, 2007. This was valid and legal. There is no legal basis to consider the unrestricted prescriptive period for initiating a lawsuit under Articles 123, 124 of the Civil Code 2015. The prescriptive period for instituting a lawsuit as to the gift deed of house No. 028386/HD-TCN between Mrs. A and Mr. N3 dated September 7, 2005 and the gift deed of house No. 14077/HD-TCN dated April 17, 2007 between Mr. N3 and Mrs. L has expired. So, request the Trial Panel to suspend the settlement of the case because the prescriptive period for initiating a lawsuit has expired under Clause 1, Article 132 of the Civil Code 2015.

The witnesses Mr. Y1, Mr. Y2 and Mr. Y3 presented: Mr. Y1, Mr. Y2 and Mr. Y3 heard that Mrs. A authorized Mr. N3 a part of the house 7A/5/21 D8 Street for Mr. N3's convenience in leasing out the house; at the same time, Mr. Y2, Mr. Y3 also said that Mr. N3 loved his two grandsons, who are Mrs. L's children, so he lent Mrs. L the house 7A/5/21 D8 Street to complete the financial procedures for the two grandchildren to study abroad.

In the first instance civil judgment No. 619/2019/DS-ST dated December 31, 2019, the People’s Court of District 10, Ho Chi Minh City judged:

1. Suspend settlement of civil case file No. 175/TB-TLVA on March 26, 2018, file No. 175A/TB-TLVA on April 17, 2018, file No. 175B/TB-TLVA on 27 175B/TB-TLVA dated August 23, 2019 on the civil case “Dispute over the request to declare the notarized document null and void” because the prescriptive period for initiating a lawsuit has expired according to Clauses 1 and 2, Article 132 of the Civil Code 2015;

2. Do not accept the entire request of Mrs. A or the successors to Mrs. A's litigation rights and obligations, Mrs. B, Mr. C, Mr. E and Mr. G on the civil case "dispute over request to declare notarized documents null and void” for the following deeds:

a. The gift deed of partial house No. 7A/5/21 (old No. 55/E11) D8 Street, Ward P7, District 7, Ho Chi Minh City, certified by the Public Notary Office I, Ho Chi Minh City, notarization No. 028386/HD-TCN, volume 06 TP/CC-SCC/HDGD dated September 7, 2005, between Mrs. A and Mr. N3;

b. The gift deed of entire house No. 7A/5/21 (old No. 55/E11) D8 Street, Ward P7, District 7, Ho Chi Minh City, certified by the Public Notary Office I, Ho Chi Minh City, notarization No. 028386/HD-TCN, volume 02 TP/CC-SCC/HDGD dated April 17, 2007, between Mrs. L and Mr. N3.

3. Note that Mrs. L did not request to address the consequences of the Decision on application of provisional urgent measures No. 14/QD-BPKCTT dated July 10, 2018 of the People's Court of District 10.

4. Cancel the Decision on application of provisional urgent measures No. 14/QD- BPKCTT dated July 10, 2018 of the People's Court of District 10.

-Request Bank N5 to release Official Letter: “Confirmation of furnishing a Bid Security” No. 30/CV-VAH 18 dated April 20, 2018 promptly after the judgment takes legal effect, refund Mrs. A. the entire amount of VND 200,000,000 (two hundred million dong) in the savings account number 260842249 that Bank N5 has frozen according to the above Letter.

In addition, the first-instance judgment also states the court fee, right to appeal, and the right to enforce the judgment of the litigants.

On January 13, 2020, Mr. C, Mr. E and Mr. G are the successors to the litigation rights and obligations of Mrs. A (the plaintiff) to appeal the entire first-instance civil judgment No. 619/2019/DS-ST dated December 31, 2019, the People’s Court of District 10, Ho Chi Minh City.

At the appellate court hearing:

Mr. D, representing Mr. C; Mr. E and Ms. H, representing Mr. G who is the successor to litigation rights and obligations of Mrs. A (the plaintiff), request the appellate court to reverse the first instance judgment, with the following grounds:

-The first-instance court suspended the settlement of the case on the grounds that the prescriptive period for initiating a lawsuit had expired. This was erroneous. Because, after Mr. N3 died in June 2017, only when seeking copies of the documents related to the house 7A/5/21 D8 Street for inheritance that Mrs. A knew the existence of the gift deed of the house No. 028386/HD- TCN dated September 7, 2005 between Mrs. A and Mr. N3, not a contract that authorized Mr. N3 to lease out the house. After learning that she was deceived, on March 15, 2018, Mrs. A filed a lawsuit to claim that the gift deed of the house No. 028386/HD-TCN was null and void.  During the settlement of the case at the first instance level, Mrs. A found out that Mr. N3 gifted the house to Mrs. L under the gift deed No. 14077/HD-TCN dated April 17, 2007 so on April 16, 2018 Mrs. A filed an additional lawsuit requesting to declare that the gift deed No. 14077/HD-TCN was null and void.

-Ms. B lives abroad (France) so she requests the People's Court of Ho Chi Minh City to keep the case file for the People's Court of Ho Chi Minh City to re-hear the case according to the first instance procedure.

Mr. D, representing Ms. B as the successor to the litigation rights and obligations of Mrs. A (the plaintiff), presented: Ms. B has resided abroad since 2016 so far. Ms. B also requested the court to turn down the first-instance judgment as presented by Mr. C, Mr. E and Mr. G.

The defendant from the Public Notary Office I, Ho Chi Minh City, represented by Mr. Do Quoc D1 disagrees with the appeal of the appellants; requests the court to affirm the first-instance judgment.

The person with related interests and obligations, Ms. Nguyen Thi Bach L, represented by Ms. M and Mr. N, disagrees with the appeal of the appellants; request the court to affirm the first-instance judgment.

The defender of Ms. Nguyen Thi Bach L presented: Before signing the gift deed No. 028386 dated September 7, 2005, Mrs. A made an application for confirmation of real estate to transfer real estate ownership, Mrs. A and Mr. N3 jointly noted "Preparing documents to sell, give, exchange real estate No. 14620/2000 Nguyen Tri Phuong" and approved by the People's Committee of Ward P7, District 7, Ho Chi Minh City. On the other hand, 15 days before the notarization of the gift deed No. 028386 dated September 7, 2005, Mrs. A made and signed the gifting document on August 25, 2005 certified by the People's Committee of Ward P7, District 7, Ho Chi Minh City. However, because the gifting of a house through a gifting document is not under the authority of the People's Committee of Ward P7, District 7, Ho Chi Minh City, Mrs. A quickly made the gift deed at the Notary Public Office I, Ho Chi Minh City.

-On page 4 of the gift deed No. 028386 dated September 7, 2005 that the plaintiff submitted, in the gifting section, Mrs. A signed, appended fingerprints and confirmed "I have read and agreed to gift the house". Accordingly, Mrs. A personally wrote the phrase "Gift the house" to confirm her will again, before signing the contract. After being gifted the above-mentioned house by Mr. N3, Mrs. L used her money to repair the house and Mrs. L was granted a certificate of land use rights and housing ownership by the People's Committee of District 7, Ho Chi Minh City on August 2, 2011. Thus, Mrs. L is the legal owner of this house in accordance with the law. Therefore, the appeal argues that Mrs. A only knew the gift deed No. 028386 dated September 7, 2005 between Mrs. A and Mr. N3 but not the authorization contract after the Public Notary Office I, Ho Chi Minh City Ho Chi Minh issued a copy is completely poorly-grounded. Accordingly, the prescriptive period for filing a lawsuit declaring the gift deed No. 028386 dated September 7, 2005 has expired as prescribed in Clause 1, Article 132 of the Civil Code 2015. Therefore, propose the Trial Panel to dismiss the appeal and affirm the first instance judgment.

Representation of person with related rights and obligations, Mr. Nguyen Hung C: He is the son of Mr. G and Mrs. Nguyen Thi Bach L. Since childhood, he has lived at house 7A/5/21 D8 Street, Ward P7, District 7 , Ho Chi Minh City.

Persons with related rights and obligations: Ms. Nguyen Thi T, Mr. C Le Duc T1 and Ms. To Thi M have request for trial in absentia; Mr. Luu Tan L1 was absent.

Representation of the witness, Mr. Y2: He heard that Mrs. A authorized Mr. N3 a part of the house 7A/5/21 D8 Street for Mr. N3's convenience in leasing out the house; and Mr. N3 also said that Mr. N3 loved his two grandsons, who are Mrs. L's children, so he lent Mrs. L the house 7A/5/21 D8 Street to complete the financial procedures for the two grandchildren to study abroad.

Mr. Y1 and Mr. Y3 are absent.

Opinions of the representative of Ho Chi Minh City People's Procuracy: From the time of accepting the case until the decision to bring the case to trial, the judge must strictly comply with the provisions of law and at the court sessions, the Trial Panel shall comply with the procedures of the Civil Procedure Code 2015.

The involved parties strictly comply with the provisions of the law.

Regarding legal proceedings: The house 7A/5/21 D8 Street, Ward P7, District 7, Ho Chi Minh City was bought by Mr. N3 and Mrs. A. Mr. N3 and Mrs. A were granted the certificate of house ownership and land use rights by the People's Committee of Ho Chi Minh City at No. 14620/2000 dated November 28, 2000.

On September 7, 2005, at the Notary Public Office I, Ho Chi Minh City, Mrs. A and Mr. N3 signed a gift deed No. 028386/HD-TCN.

On April 17, 2007, at the Public Notary Office I, Ho Chi Minh City, Mrs. L and Mr. N3 signed a gift deed No. 14077/HD-TCN.

On March 8, 2018, Mrs. A filed a lawsuit to request the cancellation of the gift deed of the house No. 028386/HD-TCN and April 16, 201 8, Mrs. A filed an additional lawsuit requesting to cancel the gift deed No. 14077/HD-TCN.

During settlement of the case, Mrs. N4 - representative of the defendant, the Public Notary Office I, Ho Chi Minh City requested the first-instance court to apply the prescriptive period prescribed in Clause 2, Article 184 of the Civil Procedure Code 2015.

The first instance civil judgment No. 619/2019/DS-ST dated December 31, 2019, the People’s Court of District 10, Ho Chi Minh City judged:

“1. Suspension of the settlement of civil case No. 175/TB-TLVA dated March 26, 2018… about the civil case “Disputes over the request to declare notarized documents null and void” as the prescriptive period for initiating a lawsuit has expired according to the provisions of Clauses 1 and 2, Article 132 of the Civil Code 2015”… According to the provisions of Clause 3, Article 217 of the Civil Procedure Code 2015, “…when the case is suspended, the Court will delete it in the court case logbook, return the lawsuit petition, evidence and documents to the involved parties…” However, the first-instance court still handled the case as indicated in Article 2, part of the decision of the first-instance judgment: “2. Do not accept the entire request of Mrs. A or the successors of Mrs. A's litigation rights and obligations, Mrs. B, Mr. C, Mr. E and Mr. G on the civil case "dispute over request to declare notarized documents null and void”…This was a serious procedural error. Therefore, it is necessary to reverse the first-instance judgment and remand the case file to the People's Court of District 10, Ho Chi Minh City to re-settle the case according to first-instance procedures. Therefore, accept partial appeal of Mr. C, Mr. E and Mr. G.

JUDGEMENT OF THE COURT

After taking account of the documents contained in the case files which have been verified at the trial and based on the results of the adversarial process at the trial, the People’s Procuracy representative and the Trial Panel determine:

[1] At the trial, Ms. S, Mr. T and Ms. X who have related interests and obligations have requests for trial in absentia; Mr. U is a person with related rights and obligations; Mr. Y1 and Mr. Y3 are witnesses, the Court has convened them for the second time, but the above mentioned parties are still absent. Pursuant to Clauses 2 and 3, Article 296 of the Civil Procedure Code 2015, the Court conducts trial in absentia as prescribed by law.

[2] At the lawsuit filed on March 15, 2018, plaintiff Mrs. A (died on August 1, 2019) requested to cancel the gift deed of the house (a part of the house 7A/5/21 D8 Street, Ward). P7, District 7, Ho Chi Minh City) No. 028386/HD -TCN dated September 7, 2005 between Mrs. A and Mr. N3. On April 16, 2018, Mrs. A filed an additional lawsuit requesting to cancel the gift deed of the house (the whole house 7A/5/21 D8 Street, District P7, District 7, Ho Chi Minh City) No. 14077/HD -TCN dated April 17, 2007 between Mr. N3 and Mrs. L.

[3] The first instance civil judgment No. 619/2019/DS-ST dated December 31, 2019, the People’s Court of District 10, Ho Chi Minh City judged: “1. Suspension of the settlement of the civil case file No. 175/TB-TLVA dated March 26, 2018; case file No. 175A/TB-TLVA April 17, 2018; case file No. 175B/TB-TLVA on December 27, 2018 and case file No. 175B/TB-TLVA on August 23, 2019 on civil cases: “Dispute over request for declaring notarized document null and void” because the prescriptive period for initiating a lawsuit has expired as prescribed in Clauses 1 and 2, Article 132 of the Civil Code 2015;

2. Do not accept the entire request of Mrs. A or the successors of Mrs. A's litigation rights and obligations, Mrs. B, Mr. C, Mr. E and Mr. G on the civil case "dispute over request to declare notarized documents null and void” for the following deeds:

a. The gift deed of partial house No. 7A/5/21 (old No. 55/E11) D8 Street, Ward P7, District 7, Ho Chi Minh City, notarized by the Public Notary Office I, Ho Chi Minh City No. 028386/HD-TCN, volume 06 TP/CC-SCC/HDGD dated September 7, 2005, between Mrs. A and Mr. N3;

b. The gift deed of entire house No. 7A/5/21 (old No. 55/E11) D8 Street, Ward P7, District 7, Ho Chi Minh City, notarized by the Public Notary Office I, Ho Chi Minh City notarization number 028386/HD-TCN, volume No. 02 TP/CC-SCC/HDGD dated April 17, 2007, between Mrs. L and Mr. N3.”…

[4] According to Clause 3, Article 217 of the Civil Procedure Code 2015: “The court shall issue a decision to terminate the settlement of the civil case, delete the name of that case from the court case logbook and return the lawsuit petition, enclosed documents and evidence to the involved parties if required…".

[5] Considering that the plaintiff's request to initiate a lawsuit had expired under Clauses 1 and 2, Article 132 of the Civil Code 2015, the first-instance court declared "1. Suspension of the settlement of the civil case because the prescriptive period for initiating a lawsuit has expired…” However, the disposition part of the first-instance civil judgment declared: “2. Do not accept the entire request of Mrs. A or the successors of Mrs. A's litigation rights and obligations, Mrs. B, Mr. C, Mr. E and Mr. G on the civil case "dispute over request to declare notarized documents null and void”. Thus, the first-instance court both declared "Suspend the settlement of the civil case because the prescriptive period for initiating a lawsuit has expired", and declared "Do not accept the entire request of Mrs. A for declaring the notarized document null and void” is a serious procedural error, affecting the interests of the litigants. Upon suspension of the case settlement, the first-instance court did not clarify if there was a handover between Mrs. A and Mr. N3 of the house 7A/5/21. D8 Street, Ward P7, District 7, Ho Chi Minh City after Mrs. A signed the gift deed of a part of the house on September 7, 2005; the first-instance court also did not clarify if there was a handover between Mr. N3 and Mrs. L of the whole house 7A/5/21 D8 Street, Ward P7, District 7, Ho Chi Minh City on July 14, 2007. In order to determine the time that Mrs. A knew that her legitimate rights and interests have been infringed.

[6] Regarding the appeal of Mr. C, Mr. E and Mr. G, who inherit the litigation rights and obligations of the plaintiff Mrs. A, requesting the People's Court of Ho Chi Minh City to keep the case file at the People's Court of Ho Chi Minh City to re-settle the case according to first-instance procedures, since Ms. B lives abroad (France).

[7] On March 26, 2018, the court of first instance accepted the case No. 175/TB-TLVA and No.175A/TB-TLVA dated April 17, 2018 regarding: “Dispute over request to declare a notarized document null and void”. This acceptance was made under their jurisdiction specified in Clause 11 Article 26; Point a, Clause 1, Article 35 of the Civil Procedure Code 2015. On August 1, 2019, Mrs. A (the plaintiff) died. After Mrs. A's death, the first-instance court brought the successors of Mrs. A's litigation rights and obligations as Mr. C, Mr. E, Mr. G and Ms. B, address: 69 Street D1 75019 Paris, into the proceedings, which was a new fact that made the case fall under the jurisdiction of another court. According to the Article 471 of the Civil Procedure Code 2015 and Clause 5, Article 7 of Resolution No. 03/2012 in Viet Nam dated December 3, 2012 of the Council of Judges of the Supreme People's Court, the People's Court of district level that accepted the case shall resume the settlement of the case. Therefore, deny this part of the appeal of Mr. C, Mr. E and Mr. G.

[8] From the foregoing, the Trial Panel considers that the first-instance court made a serious procedural error, so it accepted a part of the appeal of Mr. C, Mr. E and Mr. G, who are the successors of the litigation rights and obligations of the plaintiff, Mrs. A, as well as the opinion of the representative of the People's Procuracy of Ho Chi Minh City, it is necessary to reverse the entire first-instance judgment and remand the case file to the People's Court of district Q10, Ho Chi Minh City to re-settle the case under first-instance procedures.

 [9]. Regarding the content: The court of appeal reversed the first-instance judgment in terms of the proceedings, so the Trial Panel did not consider the content.

 [10] Regarding first instance civil court fee: The obligation to bear first-instance court fee is redefined when re-settling the case according to first-instance procedures.

 [11] Regarding appellate civil fee: Due to the reverse of the entire first-instance judgment, Mr. C, Mr. E and Mr. G, who are the successors of plaintiff's litigation rights and obligations would not have to bear the appellate court fee. They will be refunded VND 300,000 each (Three hundred thousand dong).

For the foregoing reasons;

DISPOSITION

Pursuant to Clause 3, Article 148; Clause 3, Article 308, Article 310 and Article 313 of the Civil Procedure Code 2015 in Viet Nam;

Pursuant to Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof.

Declare:

1. Accept partial appeal of Mr. C, Mr. E and Mr. G, who are the successors of the litigation rights and obligations of Mrs. A (the plaintiff).

2. Reverse the civil first instance Judgment No. 619/2019/DS-ST dated December 31, 2019, the People’s Court of District 10, Ho Chi Minh City.

3. Remand the case file to the People's Court of District 10, Ho Chi Minh City to re-hear the case under the first instance procedure.

4. Regarding appellate civil fee: Mr. C, Mr. E and Mr. G, who are the successors of the litigation rights and obligations of Mrs. A (the plaintiff) do not have to bear this fee.

Refund of advanced payment of appellate court fee to Mr. C VND 300,000 (Three hundred thousand VND) according to the receipt on collection of court fee advance No. AA/2018/0039816 dated January 15, 2020 of the Sub-department civil judgment enforcement in District 10, Ho Chi Minh City.

Refund the advanced payment of appellate court fee to Mr. E VND 300,000 (Three hundred thousand VND) according to the receipt on collection of court fee advance No. AA/2018/0039815 dated January 15, 2020 of the Sub-department civil judgment enforcement in District 10, Ho Chi Minh City.

Refund of advanced payment of appellate court fee to Mr. g VND 300,000 (Three hundred thousand VND) according to the receipt on collection of court fee advance No. AA/2018/0039817 dated January 15, 2020 of the Sub-department civil judgment enforcement in District 10, Ho Chi Minh City.

5. The appellate judgment takes legal effect from the date of pronouncement.