EN SUPREME COURT
Punishment
The apartment is based on: 2015/2549
The Verdict: 2016/7501
Decision Date: 27.06.2016
REGISTRATION ANNOUNCEMENT AND CANCELLATION CASE – LIABILITY ARISING FROM KEEPING THE REGISTER – REGISTRATION ON BEHALF OF HEIRS BASED ON A COURT DECISION – IT IS THE HEIR WHO IS THE RESULT OF AN APPOINTMENT RELATED TO THE CLAIMANT.
SUMMARY: After the decision of the Court of Cassation, the plaintiff filed a lawsuit for the enforcement of the will, which was combined with the file in his hand. In the consolidated case, the plaintiff requested the enforcement of the numbered execution order of the Court of First Instance based on the will, which is also considered valid for parcels.
823 and 827 since the parcels were identified and registered by the cadastral court on behalf of the legal heirs who are obliged to fulfill the will, in other words, registration on behalf of the heirs is based on a court decision, it is not possible to transfer to the title deed by obtaining a document stating that the plaintiff is the designated heir. Therefore, while the court should have examined the merits of the case in this case and decided according to the outcome of the compensation case, waiting for the outcome of this case, the rejection of the original and combined case file for unlawful reasons was not considered correct and required overturning.
(4721 SK Md. 1007)
Trial: After the Decrees determined at the end of the hearing between the parties were requested by the plaintiff’s attorney to be subjected to the trial, the appeal petition, which was apparently granted in due time, was accepted and the request for a hearing was made necessary by examining the file without writing the expense:
Decision: The plaintiff’s attorney … that the plaintiff is the sole heir, the heir of the deceased … left half of the inheritance share to his wife … dated 29.09.1955 … a daily will issued at a notary public to register the real estate subject to litigation in the land registry, … declaring that a lesser share is registered in his name, the will is not taken into account and registered on behalf of the defendants, …
based on his will and contracts between the plaintiff and the plaintiff, the portion to be issued on behalf of the plaintiff due to the change of title Decrees, on the basis of which the plaintiff is the sole heir, the deceased is the heir … he left half of the inheritance share to his wife … the daily will, dated 09.1955, is registered in the name of the defendants, the will and the contracts between the plaintiff and the plaintiff it has been decided to register the 50400/6585600 share to the land registry.
If this request is not appropriate, after the Land Registry Court decided that the plaintiff should pay compensation on behalf of the State due to the fraudulent registration of the land registry deed by failing to notify the owner or his heirs who are authorized to save and giving an interpretation that is not based on the law, the applied administration and the prosecutor’s office failed to fulfill their duty and informed the plaintiff that the case was entitled, based on the fair price of the parts of the real estate subject to the lawsuit that fell to the plaintiff, from the date of the decision stating that the plaintiff was the rightful owner of the case by not fulfilling their duty.,
the defendant and other defendants who caused the plaintiff’s damage until the date of the lawsuit due to the inability of the plaintiff to do the necessary work and transactions with the defendant and other defendants, along with the legal interest to process the situation from the date of notification, jointly and severally requested collection of the plaintiff’s costs and income from real estate, the defendant, the interests and earnings that he was deprived of, along with the legal interest to the defendants from the date of notification, in response to the damage suffered by the plaintiff.
defendant’s lawyer argued that the case had nothing to do with the decision of non-prosecution and that the case was dropped due to animosity, statute of limitations, statute of limitations and final judgment.
The defendant … … The tereke representative … That they knew that there were various contracts between the plaintiff …, the Dec. no.lu although they repeated their written declarations and consents in the file, they stated that they thought that the plaintiff’s request to keep his shares and increase the portion in exchange for his work and expenses was an indication of the plaintiff’s good faith.
The petition of claim has been duly communicated to the defendant … … to the representative of his heir.
no vape was given.
The court accepted the plaintiff’s case, the subject of the case is 246.955,83.-TL decided to pay the compensation to the plaintiff together with the legal interest from the date of the lawsuit, jointly and severally, together with the collection to be made from the defendants and the representative of the inheritance company. company representative … the case filed against you, Court of Cassation 8. The date of the Law Office is 26/03/2013 and …. it has been appealed with a numbered decision.
In summary, according to the scope of the file and the collected evidence, “According to the scope of the file and the collected evidence, the cancellation and registration of the title deed registration based on the will and the claim for compensation were made if it was not applied, the plaintiff was asked for approval twice due to the non-implementation of the finalized court decision. Explaining that they could not get a result from their claims, explaining that these institutions had the right to seek compensation from … due to negligence, the court put forward its request in a petition for correction, in which the plaintiff party deposited the fee dated 29.12.2011 as compensation and price, the cost of which was 246.955,83.-It has been TL.
From the documents in the file, it appears that his wife has a share of 33600/6585600, that his daughter was born in 1323, that he died on 9.11.1984, leaving the only heir, that his daughter was born in 1926. In the examination of the decision of the Civil Court of Peace dated 17.5.1983 and numbered, in the case of opening a will filed against the defendants, the court … his heirs against 8 people … 2. In the file of the Civil Court of First Instance dated 2.7.1981 and numbered 1981/302, the rejected decision on the annulment of the will was made by the Court of Cassation 2.
It has been reported that it has been approved and finalized by the Legal Department. It has been decided that a probate order will be issued to the heirs and that the property will be temporarily left to their heirs. According to this decision, registration was requested from the Land Registry Directorate, the land registry records indicate that the land registry was registered according to the certificate of inheritance issued by the Land Registry
Directorate, … in the lawsuit filed by the plaintiff … against the other heirs of … on 10.12.1985 … after the rejection and finalization of the case for the cancellation of the will, in which half of the entire assets of the inheritance certificate was given to heirs belonging to the company, their request for the determination of the decree was rejected, the enforcement of the decision was decided on 17.05.1983, but the decision on the registration of real estate could not be executed because the decision was not announced in the decision, the only heir of …… …
from the village of Halime, which was transferred from … 31, 34, 62, 82, 101, 125, 126, 127, 137, 221, 236, 288, 495, 541, 542, 543, 546, 548, 549, 552 According to the will, half of the parcels numbered 615, 616, 695, 749, 759 and 796 are inherited by …, 1/2 of the remaining half share belongs to … as the heir, and …’s share should be 3/4.
The court has decided to delete the names of 25 pieces of real estate whose registration is requested in this way.according to the land registry and the expert report, registration of 120 shares, including 192 shares for his daughters, and 12 shares in the ratio of shares for other heirs. The legal basis of the claimant’s request from … is Article 1007 of the Turkish Civil Code No. 4721, which regulates the responsibility of the State for damages arising from the maintenance of the land registry. in terms of the State’s “responsibility arising from the maintenance of the land registry”, the rules of perfect liability / aggravated cause / aggravated objective liability/ hazard liability will apply.
In order to be able to talk about the responsibility of the State, which is the source of this explicit provision of the law, the official who keeps the land registry must do something or not to Decry an illegal act and the existence of a causal link between this act and a harmful result. It does not matter whether it is of the nature of impropriety and whether it is based on a defect, according to the evidence obtained from the court decisions on which the plaintiff party relies, the file contains the plaintiff’s receipt for the goods inherited from … . …
Although it is understood that he is entitled to the inheritance with the certificate of inheritance and the probate certificate and the certificate of inheritance, the representative of the other heirs also consented to this on behalf of the other heirs due to his mother … There is no explanation or provision regarding the parcel numbered real estate, there is no lawsuit filed later by the plaintiff regarding these parcels, or the court decision in favor of the same parcels has not been finalized, it is unthinkable that the decision of the Court of
First Instance dated 19.12.2009 and numbered 2009/10 will result in favor or against, and in this case, the Land Registry Directorate, It is inconceivable that the District Governorship and the Public Prosecutor’s Office are responsible for the execution of the court decision not related to the parcels in question in the deed. no, since there is no decision made in favor of a, it is not correct to hold the terek responsible and for the court to reject the plaintiff’s case as a whole, and it is not correct to accept the case in writing on the basis of similar decisions with a justification that does not comply with the scope of the file.
The court, following compliance with the annulment decision, … it has decided to implement the decision of the numbered Civil Court of First Instance. After combining the case file he filed with this file, it was decided to reject the original file and the combined case file, and the verdict was appealed by the plaintiff’s attorney.
According to the statement contained in the petition, the case is; if the cancellation of the title deed is not possible, Article 1007 of the Civil Code. in accordance with the article, it relates to the request for compensation for damage.
Supreme Court 8. With the decision of the Law Office dated 26/03/2013 and numbered …, the court decided to reject the original file. Although it has been decided to reject the case of the merged file on the grounds that the execution of the decision will not be possible, the court’s acceptance does not comply with the content of the file.
As it is; the Supreme Court 8. Although the decision of the Civil Chamber to dismiss stated that the plaintiff’s case should be dismissed completely, considering that each case is evaluated in its current form, according to the principle of the Supreme Court, the case was filed by the plaintiff in relation to parcels numbered 823 and 827, which are the subject of the case, considering that there is no case concluded for or against, the case should be dismissed in its current form.
After the decision of the Court of Cassation, the plaintiff filed a lawsuit for the enforcement of the will together with the file in his hand. In the combined case, the plaintiff is the Court of First Instance on the basis of the will… he has requested the enforcement of the numbered executive order … by being considered valid for parcels as well. since the parcels 823 and 827 were identified and registered by the cadastral court on behalf of the legal heirs who are obliged to fulfill the will, in other words, registration on behalf of the heirs is based on a court decision, it is not possible to transfer to the land registry by obtaining a document stating that the plaintiff is the designated heir.
Therefore, while the court should examine the merits of this case, MK 1007. as for the compensation claim filed in accordance with the article, it is necessary to decide according to the result pending the outcome of this case, and the rejection of the case in the form of a main and consolidated file on unlawful grounds was not found correct and was not considered on the spot.
Conclusion: For the reasons explained above, it was unanimously decided on 27.06.2016 to accept the plaintiff attorney’s appeal, the EXCESSIVE FINE of the judgment and the refund of the appeal fee upon request.