TC
Supreme
law office
Original No.: 2014/14603
Decision No:2015/21591
K. Date:2.12.2015
N.. B.. with M.. examination of the Karamürsel Court of First Instance’s decision dated Dec. 14.02.2014 on the rejection of the receivable lawsuit arising from the Property Regime filed between and … by the Supreme Court at the time of request by the plaintiff’s attorney; when the file was examined; it was assessed that there was a need:
decision
Plaintiff N. the attorney has filed a claim for receivables with the liquidation of the property regime in relation to the immovables specified in the lawsuit petition.
Defendant M. his attorney, on the other hand, defended the dismissal of the case.
Upon the court’s decision to dismiss the case on the grounds that it could not be proved that the plaintiff’s contribution to the acquisition of the goods subject to the lawsuit was made, the judgment was appealed by the plaintiff’s attorney.
1- Since the independent sections numbered 4 and 13 were purchased by tender and registered on behalf of the defendant after the termination of the goods regime, the subject of the lawsuit cannot be resolved within the framework of the liquidation provisions of the goods regime. However, according to the general provisions of the Code of Obligations, the plaintiff may file a lawsuit with a receivable lawsuit to be filed in the general courts. As a result of the decision, since the rejection decision regarding these immovables was correct, it was necessary to decide on the rejection of the appeals related to these immovables.
2- In independent appeals related to section 12, the subject of the case is that the parties assert material events, the judge makes legal qualifications and determines the legal articles to be applied (CCP 33/6100. m). According to the way the case is put forward, the case relates to the request of one of the spouses to no longer participate in the acquired property. Merchandise
in the acquired property owned by one of the spouses during the continuation of the regime, the other spouse has the right to participate at the rate of half of the residual value.
It can no longer receive participation in the value; one of the values to be collected (TMK 229.m) and without equalization (TMK 230.m) the value of the acquired property of the spouse, including the obtained values (TMK 219.m) the residual value remaining after the debts related to these goods are deducted from the total value (TMK 231.m) the other spouse has the right to receive more than half (TMK 236/1.m). Participation is a right arising from the Law that he will receive, and the spouse who claims this right does not need to have an income or contribute to the acquisition, improvement or protection of this property.
In the calculation of the receivable for participation in the residual value, the version (fair) values of the existing goods on the expiry date of the goods regime are based on their condition on that date, except for the condition on the liquidation date (TMK 227/1, 228/1, 232 and 235/1. m). According to the practices of the Court of Cassation, the date of liquidation is the date of decision. A property of
the person who claims to belong to one of the spouses is obliged to prove his claim. The property belonging to the spouses, which cannot be proved, is considered their shared property. All the property of a spouse is considered acquired property until it is proved otherwise (TMK 222. m).
In order for the above-mentioned value determination, determination and calculations to be made, assistance should also be obtained from the subject’s expert or expert witnesses if necessary.
As for the concrete event; the spouses were married on 24.08.1993 and divorced on the finalization of the decision on the acceptance of the divorce case filed on 15.09.2010.
The property regime has ended on the date of opening the divorce case (TMK 225/son). Since it is not claimed that another property regime has been selected by the contract, from the date of marriage until 01.01.2002, when TMK 4721 entered into force (TKM 743 170.m), from this date until the end of the goods regime, the regime of participation in acquired goods is applied (Law No. 4722, 10. article, TMK 202/1.m).
The independent section No. 12 subject to liquidation was purchased on Dec. 04.12.2009, the date on which the regime of participation in acquired property between spouses was applied, and was registered on behalf of the defendant spouse. In the liquidation of the property regime, the provisions related to the regime to which the spouses are bound are applied (TMK 179.m). According to the land registry found in the file… a mortgage has been established in favor of the bank.
Although it was decided to dismiss the case based on the expert report due to the court’s decision that a share of participation in the case would be taken and the plaintiff’s participation could not be proved,; considering the manner in which the claim was put forward and the date of acquisition of the real estate, the claimant’s request is now directed to the added value receivable, and the participation share does not need to be deposited in order to make a judgment about the receivable. Accordingly, although the evidence of the party should be collected within the framework of the claim and defense and a decision should be made about this independent section, the conclusion reached by misjudging the evidence was not correct.
CONCLUSION:
The appeal request mentioned above (2.), the other appeal requests of the plaintiff’s attorney are for the reason specified in paragraph 388/4 of the CMB of those who are parties to the rejection decision (1.) related to the DETERIORATION of the cause shown in paragraph 1 above. (HMm297 /ç) and in accordance with Article 440/I of the CMB, it was unanimously decided on 02.12.2015 that a request for correction of the decision against the announcement can be filed within 15 days from the notification of the Supreme Court Office and that the advance fee of TL 25.20 can be refunded to the plaintiff if requested.