Supreme Court of Turkey
Law Office
Case File No.: 2015/7405
Decision No.: 2017/369
Date of Decision: 17.01.2017
CASE ON THE LIQUIDATION REGIME OF PROPERTY –
PROPERTY ACQUIRED BY DONATION BELONGING TO THE DEFENDANT
THIS PROPERTY IS PERSONAL PROPERTY AND CANNOT BE INCLUDED IN THE LIQUIDATION –
DECISION ACCEPTING THE PLAINTIFF’S CLAIM REGARDING RECEIVABLES
– NON-COMPLIANCE WITH THE JUDGMENT – VIOLATION OF THE JUDGMENT
SUMMARY: The court’s decision to accept the plaintiff’s claim, without considering the fact that the property was acquired by donation,
is the personal property of the defendant and cannot be included in the liquidation, is contrary to procedure and law and must be annulled.
(6098 s. K. m. 285)
Case and Decision: At the end of the hearing between the parties in the above-mentioned case,
the court decided to partially accept and partially reject the case, and the defendant
appealed to the Court of Appeal, which reviewed the file and decided on the case as necessary.
The plaintiff and his attorney stated that his client served as a non-commissioned officer, while the defendant was a housewife and did not work at all,
that there was money in a registered residence, an office, and a bank account purchased in the name of the defendant and paid for by the plaintiff during the marriage,
and that he requested the collection of the increased share, with interest,
along with accrued interest; the principal amount is 5,000.00 TL.
In the explanatory petition dated 18.03.2014, the plaintiff requested 500.00 TL for the residence, 3,000.00 TL for the office, and 750.00 TL in cash. In the explanatory petition dated 03.18.2014, he stated that there was a total of 1,000.00 TL in cash, consisting of 500.00 TL for the residence, 3,000.00 TL for the office,
750.00 TL in cash, and 750.00 TL from Bank Asia.
In the petition dated 02.17.2015, he stated that for the house for which they had deposited their money in accordance with the procedure, In the letter of demand dated 17.02.2015, they increased the amount they requested for the house, for which they had deposited their money in accordance with the procedure,
to 60,500.00 TL as the office fee and 17,000.00 TL as the office fee.
The defendant… argued that the subject of the case, the property purchased with the financial assistance of the defendant’s father,
was transferred by the defendant’s father to his daughter, and that the proceeds from the sale of the office were used to cover the renovation of the property in question, the necessary expenses for the children and their education,
and requested that the case be dismissed, claiming that the expenses had been incurred and that the plaintiff had made no contribution to the acquisition of the assets.
The court partially accepted the case and ruled that the plaintiff would receive a contribution share of 60,500.00 TL for the residence, while the office would receive
a contribution share of 17,000.00 TL and a contribution share of 47.47 TL for the bank accounts.
It was decided that the remaining balance would be rejected, along with the legal interest to be calculated and paid to the plaintiff from the date it was received from the defendant.
The decision was appealed by the defendant’s representative within the time limit.
1- Based on the file contents, case documents, and hearing minutes, and in accordance with the court’s
discretionary decision, it was decided that there was no procedural irregularity in the case, and the defendant’s
attorney’s other appeals outside the scope of the following paragraph were not considered.
2- Regarding the objections made by the defendant’s attorney to the office;
Donations are regulated in Articles 285 and following of the Turkish Code of Obligations No. 6098. According to Article 285,
a donation is an uncompensated gift of property made to provide health benefits to the donor and
is defined as profit-making. Teaching, on the other hand, is defined as a donation made without expecting anything in return from the giver, with the aim of increasing and enriching the donor’s assets, and
is defined as giving value to the donor. (Aydoğdu, Murat/Kahveci Nalan: Special Provisions of the Turkish Code of Obligations
Special Provisions, Izmir 2013, p. 344, Yavuz, Cevdet: Turkish Code of Obligations Special Provisions, 6th ed., Istanbul
2002, p. 222).
Depending on the characteristics of each specific case, the intention to donate may be clearly stated or it may be made in a hidden (implicit) manner
. Therefore, even if some benefits resemble a donation,
they are not considered donations because the intention to donate is not present.
For an act to be classified as a donation, the behavior must clearly demonstrate the intention and purpose of donation, leaving no room for doubt.
According to the established practice of the Supreme Court and the Chamber,
when it comes to goods, even if a sale is shown, the goods are considered a gift. This
disposition is accepted as a gift as a factual presumption in accordance with the normal course of life. Contrary to this presumption,
the spouse who claims that the goods were actually purchased by paying money is obliged to prove this claim.
This accepted factual presumption requires the obligated party to prove it. This accepted factual presumption requires the party under obligation to prove it.
The claim of the mother or spouse that the dispositions of the property inherited from the father were not gifts but actual sales is
strong and persuasive; in particular, they must prove with evidence the payment records
relating to the payment of the sale price.
Regarding the specific dispute; the parties married on May 16, 1995, filed a lawsuit on September 17, 2012, and
divorced when the decision to accept the divorce case became final on February 20, 2014.
In the real estate title deed of the title deed office No. 7, which is the subject of liquidation, the defendant’s father’s name is registered as a person not involved in the lawsuit;
the marriage was registered in the defendant’s name by way of sale on September 3, 2007, and on August 3, 2012,
it was transferred to a third party not involved in the lawsuit in the title deed record.
If the court ruled that the office was accepted as the defendant’s acquired property and would be delivered in favor of the plaintiff,
this reasoning does not correspond to the scope of the file.
As can be seen from the principles mentioned above, this transfer from the father to the defendant should be accepted as a gift. The burden of proving the contrary of this factual assumption
lies with the plaintiff.
Even if the plaintiff’s side made the payment, the office purchased it from the defendant’s father, and even if the defendant
claims to have taken it over, the scope of the file does not prove that the sale was genuine.
By disregarding the fact that the office is personal property and cannot be included in the liquidation, the court’s decision to accept the defendant’s
claim for payment
in writing, on the grounds that it was acquired by donation, is contrary to procedure and law and must be annulled.
Conclusion: For the reasons stated in paragraph (2) of the appealed decision, the defendant’s attorney should state that, due to the appeal being duly considered, Provisional Article 3 of Civil Procedure Law No. 6100 has been accepted and,
in accordance with the essence of Article 428 of the Code of Civil Procedure, the other appeals
should be rejected in accordance with the above article. It was rejected by the parties for the reasons stated in paragraph 366/3 of the Code of Civil Procedure. According to the article, within 10 days of notification of the decision, an application may be made to the Court of Cassation for the decision to be corrected, and
upon request, the advance fee shall be refunded. It was unanimously decided on 17.01.2017.