TC SUPREME
Legal Department Article No: 2015/11101
Decision No: 2017/2353
Decision Date: 02.23.2017
LIQUIDATION OF GOODS AND LEGAL ACTION FOR RECEIVABLES – DONATION BY THE PLAINTIFF
AS THE ASSUMPTION OF CONTRARY COULD NOT BE PROVEN – CONSPIRACY
THE DEFENDANT’S PERSONAL PROPERTY SHOULD BE TAKEN INTO ACCOUNT DUE TO THE SUSPECT BEING THE DONOR
CONSIDERATIONS
SUMMARY:
Since it cannot be proven otherwise, the land in question is a donation by the plaintiff.
Therefore, the fact that the land is the personal property of the defendant must be included in the calculation.
After the court deducted the land price, the judgment should have been determined based on the value of the remaining declarations.
It was stated that it would be correct to determine the judgment by including the base price in the calculation,
but since this was not done, the decision should be overturned.
(4721 Pp. K. m. 179, 202, 225) (743 Pp. K. m. 170) (4722 PK m. 10) (6100 p. K. m. 33) (YIBK.
01.04.1974 T. 1974/1 E. 1974/2 K.) (YIBK. 27.03.1957 T. 1956/12 E. 1957/2 K.) (YHGK. 26.06.2013
T. 2012/8-1137 E. 2013/879 K.)
At the end of the trial between the parties in the above-mentioned case, the Court
decided to accept the case and, upon the defendant’s objection to the decision, the Chamber
reviewed the case and deemed it necessary.
The plaintiff will appoint an attorney through the liquidation of assets due to the immovable property specified in the petition.
The defendant objected to the dismissal of the case.
With the acceptance of the plaintiff’s request, the decision regarding the collection of the amount of TL 25,665.00 calculated by the court for the immovable property subject to the lawsuit, together with legal interest from the defendant, will take effect from the date the participant’s decision was made. The decision was appealed by the defendant’s representative.
1- Considering that the court’s decision was based on the file contents, case documents, and hearing minutes, and that there were no procedural irregularities in the case, the defendant’s representative’s appeals outside the scope of the following paragraph were not considered.
2-
It is the judge’s duty to present the material facts to the parties, make legal assessments, apply the law, and determine the articles (6100 s. (HMK 33 m)). According to the manner in which the claim was presented, the case concerns participation in the remaining value and your claim under the will. Regarding the specific case; the spouses married on November 23, 1989, the divorce case was filed on September 20, 2010, and they divorced when the decision to accept the case became final. The property regime of the divorce case ended on the date it was filed (TMK 225/final). In addition, another property regime was chosen by contract.
From the date of marriage until January 1, 2002, when Law No. 4721 came into force
and until the date of separation (Article 170 of Law No. 743), the participation regime applies to acquired property from this date until the termination of the property transfer regime (Article 10, Article 202/1 of Law No. 4722).
The immovable property with parcel number 132, purchased on 12.07.2006 and subject to liquidation, was registered in the name of the defendant spouse on the date when the participation regime for acquired property was valid.
In the liquidation regime for property, the provisions relating to the regime to which the spouses are subject apply
(Article 179).
Within the entire scope of the file and the documents examined; it is understood that the real estate in question, parcel no. 132,
was sold and transferred to the defendant by the defendant’s mother on 12.07.2006.
The defendant’s witness statements, the cadastral records of the real estate in question, the land registry, the official title deed, and
the scope of the file and normal practice indicate that the sale made by his mother to the defendant, even if shown as a sale in the title deed,
is in the nature of a gift. (YIBK No. 1/2, 01.04.1974; No. 123/2, 27.03.1957) The decision of the High Court and
the acceptance of our chamber are also in this direction. The burden of proof lies with the party claiming the contrary to the normal situation. (GCM
No. 1137/879, 06.26.2013).
In a specific case; considering that this assumption cannot be proven otherwise by the plaintiff against the donation,
the fact that the suspect is the donor must be taken into account in calculating the fact that the land is the plaintiff’s personal property. Although it is necessary for the court to make a ruling on the value of the land after deducting its cost,
the value of the land must also be included in the calculation of the ruling;
however, since this determination was not made correctly, the decision must be overturned.
Conclusion:
For the reasons stated in paragraph (2) above, the defendant’s attorney’s objections are accepted,
and pursuant to Provisional Article 3 of HMK No. 6100 and Article 428 of HUMK No. 1086,
if the defendant’s attorney’s other objections are rejected for the reasons stated in paragraph (1) above,
the parties may file an objection against the decision within 15 days from the date of notification by the High Court of Appeals, pursuant to Article 440/I of the CMB,
and an advance fee may be paid to the appellant.
The decision to return it was made unanimously on February 23, 2017.