Supreme Court 1. Legal Department 2013/21711, 2014/11276 Decision
“Case Law Text”
COURT: GERMENCIK COURT OF FIRST INSTANCE
Date: 19/06/2013
Number: 2012/19-2013/442
At the end of the case of cancellation and registration of the title seen between the parties, the decision made by the Local Court to accept the case from the point of view of the plaintiff Ayfer; the decision made on the rejection of the case due to the waiver from the point of view of the plaintiff Hussein was appealed by the defendant’s lawyer within the legal period; the judge of decontamination.. his report was read, his explanations were listened to, and his necessity was discussed and considered;
-DECISION-
The case is related to the request to cancel the title and register at the share rate based on the legal reason of Muris muvazaa, and the court decided to accept the case from the point of view of the plaintiff Ayfer on the grounds that the claim of muvazaa is fixed; the case was rejected due to the waiver from the point of view of the plaintiff Hussein.
HeritageG..’s is on 11.2.2011 back with the plaintiffs as heirs of defendant left, mirasbirakani 46 ada 83, 86 and 87 on his real estate parcel No. with foreclosures on the date of the defendant to a share in total 18.1.2011 10.150,00-TL as assigned by sales kayden is constant.
The plaintiffs filed a lawsuit alleging that the transfer transactions in question were carried out as muvazaali in order to steal property from the heirs, and during the trial, plaintiff Hussein waived the case.
As is known, muvazaa, defined as “Muris muvazaa” in practice and teaching, is a nisbi (seasuf-qualified) type of muvazaa by its nature. In the said muvazaada, mirasbrakan really wants to make a contract and transfer the real estate of the deed. But in order to deprive his heir of the right to inherit, he hides his main purpose and transfers his real estate with the deed that he actually wants to donate, explaining his will in the official contract that he makes in the deed in accordance with the contract of sale or care until he dies.
In the case law of the Supreme Court settled in this case, and l.4.1974 since the apparent contract does not comply with the Real will of the parties, as explained in the decision to merge case law No. 1/2 of date 1/2, the secret donation contract is also 706 of the Turkish Civil Code, 237 of the Turkish debt Law and 26 of the Land Registry Law. because it lacks the form conditions provided for in its articles, all heirs whose right to inheritance is violated, whether they have a hidden share or not, can sue and ask for the determination of the invalidity of the official contract due to muvazaa and the cancellation of the Land Registry created on the basis of it.
In other words, the actual aspect of the assignment to the defendant depends on the disclosure of the original Will and purpose of the inheritance in a way that leaves no room for hesitation. Since it is often difficult to determine and clarify the true Will and purpose that is an internal problem and is hidden, it is of great importance that the evidence in this direction is collected fully, as well as evaluated together and correctly. In this, there is a need to use facts such as the Customs and customs of the country and region, social trends, the usual flow of events, whether the decency of the decency has a justified and reasonable reason for making the contract, whether the defendant has the purchasing power, the difference between the sale price and the actual value at the date of the contract, the human relationship between the parties and the decency.
On the other hand, 6100 PP. HMK’s 190. according to the article, ”the burden of proof belongs to the party that claims in its favor from the legal outcome related to the alleged case, unless there is a special regulation in the law. A party based on a legal presumption is only under the burden of proof of the case that forms the basis of the presumption. Except as provided for in the law, the counterparty may prove the opposite of the legal presumption.”, TMK’s 6. according to its article; ”unless there is a provision to the contrary in the law, each party is obliged to prove the existence of the facts on which it bases its right. ”
As for the concrete incident, in particular, the plaintiff witnesses heard did not make a statement that the assignment was made for the purpose of smuggling property from the heirs. The difference between pure prices is also not proof of decency. Of all the file coverage, 190 of HMK and 6 of TMK. in accordance with the articles, it is concluded that the plaintiff cannot prove the claim of muvazaa, with another statement that the assignment is the actual sale.
As such, it is not right that a written decision should be made when the case should be dismissed.
The defendant’s appeals are in place. For the reasons described in the adoption of the provision (provisional 3 of law 6100.send with the item ) ARTICLE.of 428. it was unanimously decided on 09.06.2014 that the advance fee received should be returned to the appellant.
