Supreme Court 1. Legal Department 2013/21600, 2014/1631 Decision 30.01.2014 Decision
CANCELLATION AND REGISTRATION OF THE TITLE DUE TO MURIS MUVAZAA
ABUSE OF RIGHT
OPENING OF THE CASE AFTER MANY YEARS, WHICH IS NOT SUBJECT TO THE LOWERING OF THE RIGHTS PERIOD AND THE STATUTE OF LIMITATIONS
Article 2 of the Turkish Civil Code (TMK) (4721)
“Case Law Text”
Tuesday 09.07.2013, which is determined as the day of the hearing, the appellants ‘acting attorney H. Decker, the decision made by the Local Court regarding the acceptance of the case, has been appealed by the defendants’ attorney with a request for a hearing within the legal period. He. with the appellants acting Attorney R. I.after the decision was made to accept the appeal, which is understood to have been granted and registered during the trial, oral statements from the deputies were heard, the hearing was reported to have ended, and the work was left to the decision. Bilahare Examination Judge ….. the report was read and received. Dossier examined and considered:
The case is related to the cancellation of the title based on the legal cause of Muris muvazaasi and registration at the rate of inheritance share, if not possible, to the request for tenkis.
From the contents of the file and the evidence collected; from the real estate subject to contention, from the real estate deed No. 546.. K.. it was determined on behalf of and the cadastral record was finalized on 15.03.1982, 419 parcels of real estate dated February 1954 with the registration of the title 60 registered in the name of the heir, while in 1969 his son H.K.L’a price against the determination of the cadastre on behalf of Hamdi by stating that the cadastre was made and the cadastre minutes were completed on 15.03.1982, other contention subject 59 and 159 parcels during the cadastre determination of half the share of March 1335 dated 71 and 72 with the land registry records A.son Y., 6 shares as of 24 shares with the deed records No. 68 and 69 dated May 1950. his wife Z. and a share of 3 out of 18. their son th., F., Z., M., N. and E. 59 and 159 parcels Z in the external and Rizai decks that they have made between those named and registered in their names. with his children Penbe, F., Z., M., N.ve E.it hit, Z. On his death as a widow in 1959, his children remained as heirs, leaving an inheritance from stakeholders.N. s principal on their behalf, P., Z. and M. acting by proxy, their shares are paid by Silivri Notary in accordance with the 2008 contract on the promise of sale numbered 22.01.1979.. K..he said he sold ¾ of his share to H. K.in his name, ¼ share is D.daughter E.F., who was identified in his name and left a legacy’s sold these places and consent to the determination of the signature received, Cadastral minutes were completed on 15.03.1982 without objection, stakeholder H. K.L’s in these moves E.ye he also acquired ¼ shares on 31.12.2001 and owned all of the parcels, leaving a root inheritance born in 1911. K.died on 06.04.1991, left behind the claimant’s children as heirs E. M. N. His son H., who died on 26.03.2005the plaintiff’s bride, who is the wife of C. descendants and C. with his son H. who died on 07.04.2003’s wife defendant N. other defendants with grandchildren remain.
Plaintiffs, heirs F.K. by murisi of the defendants H. K.they filed a lawsuit claiming that the assignment was intended to kidnap property from the heirs and was muvazaali.
In order to smuggle property from the other children of the bequeatherd, the court determined that the property of the defendants, murisi, was his son H.it was decided to accept the case on the grounds that he had transferred it to muvazaali.
However, during the trial, the prosecution money order dated 16.05.2011 a subject of contention with the petition in terms of their case and their estates parcel 546 moving left to throw in the session that are available for reporting appearing for the Defendant dated 22.06.2011 read this petition, although opposed by the party about to be abandoned parcels 546 atıye respondent of the case have been referred to as parcels should be judged not in relation to the provision due to leave the horse in the facility while it is not true that the scope of the aforementioned have been taken into considered immovable.
In terms of other real estate subject to contention; all of parcel 419 and parcel 59 and 159 ¾ share during the cadastral determination of defendants murisi H.. K..it was determined on behalf of and cadastral determinations were finalized on 15.03.1982, leaving the root legacy F. K. although there is no statute of limitations and decriminalization period in cases filed based on the legal cause of muris muvazaasi, the date of the case was not filed until 10.02.2010, from 06.04.1991, when he died; after all this time, the filing of the case was 2 of the Turkish Civil Code. it is clear that it is incompatible with the provision of the article.
In this case, it is not true that there is no place for the government facility due to the abandonment of 546 parcels, and in terms of other real estate, the decision to dismiss the case should be made, as written with a misleading assessment.
The appeals of the defendants attorney are in place for the stated reasons. With the adoption of the provision (provisional 3 of Law No. 6100.send the item with no 1086 ARTICLE.of 428.Article 14 of the Attorney’s fee tariff, which entered into force on 29.12.2012, to be broken in accordance with the article, to return the advance fee received to the appellant. 990.00 for the acting appellants who come in accordance with article.TL. the hearing was decided by a majority vote on 30.01.2014 to remove the attorney’s money from the appellants.
- VOTING AGAINST-
1) – I participate in the decision to disrupt the apartment from the point of view of the real estate of 546 parcels subject to the case.
2) – however, 59, 159 and 419 parcels in terms of real estate file content, collected evidence, legal and legal grounds on which the provision is based, according to the absence of a hit in the evaluation of the evidence, the court’s determination that the assignment is muvazaali is correct.
In the case, the defendants are infected with muvazaa Land Registry records formed on behalf of murisi. Muvazaa is the contradiction between Will and declaration as soon as possible, deliberately created in order to deceptive third parties. The sanction of muvazaan is the butlan of the contract. In that respect, a certain period has passed since the date of execution of the contract, or the granting of consent to the contract or the fulfillment of the obligations of the covenants does not give effect to the muvazaali contract. For this reason, the opening of title deed cancellation cases based on the legal cause of muvazaa is not subject to any period of time.
However, it is not mandatory for a right to be exercised immediately or shortly after its birth, to be requested or sued. If the exercise of the right depends on a statute of limitations or a lowering of the right, it is sufficient to take action before the expiration of this period. In cases where such a period does not exist, the right holder can use his right at any time, even after many years have passed. Plaintiffs have exercised a right that the legal order recognizes to them.
Hence TMK 2.there is no contradiction in substance. On the merits of the matter, I do not agree with the opinion of the majority.
However, since it is not right to be included in the acceptance of shares that are not transferred from the inheritor in the real estate numbered 59 and 159 parcels, the defendants ‘ appeal should be accepted for this reason in terms of the real estate numbered 59 and 159 parcels.
