Supreme Court 1st Civil Chamber 2013/21711 Main, 2014/11276 Decision
“Justice Text”
COURT: GERMENCIK CIVIL COURT OF FIRST INSTANCE
DATE: 19/06/2013
NUMBER: 2012/19-2013/442
At the end of the title deed cancellation and registration lawsuit between the parties, the local court accepted the lawsuit in terms of plaintiff Ayfer; the decision regarding the dismissal of the case due to the waiver of the plaintiff Hüseyin, has been appealed by the defendant’s attorney within the legal period; The report of the Investigation Judge was read, his explanations were listened to, the need was discussed and considered;
-DECISION-
The case is related to the request for cancellation of the title deed based on the legal reason of the muris collusion and the registration at the share rate, and the court accepted the case from the plaintiff Ayfer on the grounds that the collusion claim is fixed; The case was dismissed due to the waiver of the plaintiff Hüseyin.
Mirasbırakan AG. died on 11.2.2011, left the defendant as heir with the plaintiffs behind, and the share of the legator in the immovables numbered 46, 83, 86 and 87 parcels was assigned to the defendant on 18.01.2011 for a total price of 10.150.00-TL. it is fixed as recorded.
The plaintiffs filed the lawsuit with the allegation that the said transfer transactions were carried out collusionally in order to smuggle goods from the heirs, and during the trial, the plaintiff Hüseyin waived the lawsuit.
As it is known, collusion, which is defined as “muris collusion” in practice and teaching, is a type of collusion in terms of its nature. In the aforementioned collusion, the legator really wants to make a contract and transfer the title deed immovable. However, in order to deprive his heir of his right to inheritance, he hides his main purpose and transfers the title deed immovable that he actually wants to donate by expressing his will in the official contract he made in the title deed, in line with the contract of sale or maintenance until death.
In this case, since the apparent contract does not comply with the real will of the parties, as explained in the settled case-law of the Court of Cassation and in the Jurisdiction No. 1/2 dated 04.04.1974, the confidential donation contract lacks the form conditions stipulated in Articles 706 of the Turkish Civil Code, 237 of the Turkish Code of Obligations and 26 of the Land Registry Law. All the heirs whose inheritance rights have been violated, whether they are shareholders or not, may file a lawsuit and demand the invalidity of the official contract due to collusion and the cancellation of the title deed registration created based on this.
Reaching a healthy, fair and correct solution to such disputes depends on revealing the true direction of the assignment made to the defendant, in other words, the real will and purpose of the legator without hesitation. Since it is often difficult to determine and clarify the real will and purpose, which is an internal problem and hidden, it is of great importance that the evidence in this direction is collected completely and evaluated together and correctly. This includes the customs and traditions of the country and the region, social trends, the ordinary course of events, whether the legator has a just and reasonable reason for making the contract, whether the defendant has purchasing power, the difference between the sale price and the actual value on the date of the contract, the human relationship between the parties and the legator. It is necessary to take advantage of such cases.
On the other hand, 6100 p. According to Article 190 of the HMK; “The burden of proof lies with the party who has a right in his favor from the legal result connected to the alleged case, unless there is a special regulation in the law. The party relying on a legal presumption is only under the burden of proof regarding the fact that forms the basis of the presumption. Except for the exceptions stipulated in the law, the other party can prove the opposite of the legal presumption.” According to Article 6 of the TMK; “Unless there is a contrary provision in the law, each party is obliged to prove the existence of the facts on which it bases its rights. ”
As for the concrete event; In particular, the witnesses of the plaintiff who were heard did not make a statement that the assignment was made with the aim of smuggling property from the heirs. The difference between mere prices is not a proof of collusion either. From the scope of the whole file, it is concluded that the claimant could not prove the collusion claim in accordance with Articles 190 of the HMK and Article 6 of the TMK, in other words, the assignment is a real sale.
As such, it is not correct to have a written verdict when the dismissal of the case should be decided.
Defendant’s objections are valid. It was unanimously decided on 09.06.2014 that the verdict be overturned pursuant to Article 428 of the HUMK, due to the reasons explained (by sending the provisional article 3 of the Law No. 6100) and that the advance fee be returned to the appellant.
