TURKISH SUPREME COURT
1st Civil Chamber
Case No.: 2013/18129
Decision No.: 2014/4907
Date of Decision: March 5, 2014
CASE FOR THE CANCELLATION OF TITLE AND REGISTRATION – FRAUD – SITUATION WHERE PERSONAL RIGHTS TERMINATE UPON DEATH – REGISTRATION OF REAL PROPERTY IN ACCORDANCE WITH THE SHARES IN THE DECLARATION OF INHERITANCE ON BEHALF OF THE PLAINTIFF AND HEIRS
SUMMARY: In the heirs’ declaration of inheritance, real estate must be registered in proportion to their inheritance shares, taking into account that the legal entity ceases to exist upon death.
(Turkish Civil Code Art. 28) (Turkish Commercial Code Art. 28) (Turkish Code of Obligations Art. 36)
Case: In a case decided between the parties;
The plaintiff, born in 1933 and of advanced age, resides in Plot No. 190, Lots 5, 8, 192, 198, 2, 1, 199, 5, and 7. Until his death, he acted in concert with his neighbor and wished to transfer this property to the defendant. However, the defendant’s fraud during the sale process was carried out in the form of a deed of title. Since no payment was made, the defendant waited for a while and then filed a claim against the plaintiff seeking the cancellation of the title deed. During the proceedings, they sought to render a decision on behalf of the heirs of U, who had passed away. The plaintiff was represented by an attorney; the other heir is D. On the other hand, D has waived the lawsuit; a representative was appointed to the decision-maker in accordance with the court’s interim ruling.
The defendant argued that the sale was genuine and sought dismissal of the case.
Th e court decided to accept the case on the grounds that the claim had been previously established.
The defendant’s attorney objected to the decision, but the report by Investigating Judge Barış Bülbül was read. The arguments were evaluated. T he file was reviewed. The matters deemed necessary were discussed and evaluated.
Ruling: The case concerns a request for the cancellation of the title deed and its registration on the grounds of fraud.
The court decided to accept the case.
Given the contents of the file, the evidence gathered, and the determination that the transfer of the real property in question was carried out fraudulently, there is no objection to accepting the case. The defendant’s counsel’s objections in this regard are unfounded and have been rejected.
Conclusion:
Unfortunately, Article 28 of the Turkish Civil Code exists. Although it is not correct that a decision regarding the registration of a deceased person was made pursuant to Article 2, this does not require a retrial; since the provision that personality ceases upon death, as stipulated in Article 2, was not taken into account. “… the decedent HAA These real properties are returned to the seller.
His son was born on April 10, 1933. The registration of HA and the separate recording of title deeds in his name, the removal of the relevant phrase from the article, and the inclusion of the phrase “regarding the registration of shares in the declaration of inheritance on behalf of the heirs”—along with the acceptance of the defendant’s counsel’s objections in this regard—as well as the inclusion of Article 3 of the Transitional Provisions of the Civil Procedure Code No. 6100 are required. Pursuant to Article 438/7 of the Criminal Code No. 1086, by referring to the relevant provision…” Pursuant to the aforementioned provision, on March 5, 2014, by unanimous vote, a decision was made to CORRECT and AMEND the aforementioned provision in this manner, and to refund the advance payment to the plaintiff.