Heirs Of The Creditor Of The Mortgage Established 60 Years Ago Must Be Determined
General Assembly of Civil Chambers 2017/2535 E. , 2018/778 K.
“Case Law Text”
COURT : Civil Court of First Instance
At the end of the trial held due to the “removal of the mortgage” lawsuit between the parties, the decision dated 22.11.2013 and numbered 2013/518 E., 2013/562 K. of the Ankara 19th Civil Court of First Instance on the procedural dismissal of the lawsuit was requested by the plaintiffs’ attorneys, and with the decision of the 14th Civil Chamber of the Court of Cassation dated 01.04.2014 and numbered 2014/564 E., 2014/4309 K:
“…The plaintiffs claimed that a mortgage was established in favour of the defendants on the immovable property numbered 156 parcel owned by the plaintiff … on 10.11.1958 and on the immovable property numbered 162 parcel owned by the plaintiff … on the same date, and that they could not pay the mortgage amount since they could not reach the defendants, and that they were ready to deposit the mortgage amount, and requested the release of the mortgages.
The court decided to dismiss the lawsuit on the grounds that a lawsuit cannot be filed against dead persons.
Judgement was appealed by the counsel for the plaintiffs.
The lawsuit is related to the request for cancellation of the mortgage.
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The capacity to sue is the capacity to be a party to the lawsuit. Article 50 of the CCP No. 6100 stipulates that those who have the capacity to benefit from civil rights shall also have the capacity to be a party in the lawsuit. As stated in the provision of the law, the capacity of a party is the form that the capacity of right in civil law takes in procedural law. The article states that those who have the capacity to benefit from civil rights shall also have the capacity to be a party in the lawsuit, without distinguishing between real and legal persons.
Pursuant to Article 124 of the CCP No. 6100 titled “Voluntary change of party”; A change of party in a lawsuit is only possible with the express consent of the other party. However, a request for a change of party arising from a material mistake or not contrary to the rule of good faith shall be accepted by the judge without seeking the consent of the other party. If the incorrect or incomplete representation of the party in the lawsuit petition is based on an acceptable mistake, the judge may accept the request for change of party without seeking the consent of the other party.
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Article 28 of the TCC stipulates that upon the death of a natural person, his/her capacity to benefit from civil rights and, accordingly, his/her capacity as a party shall cease. Although the person whose personality is terminated due to death before the date of the lawsuit cannot be sued since he/she will lose his/her capacity as a party; as stated above, if it is not against the rule of honesty to show the wrong party in cases where the addressee is shown incorrectly due to material error, the plaintiff cannot correctly identify the person to whom he/she will file a lawsuit despite all due diligence, or the addressee dies after a transaction that has recently been transacted with him/her or only his/her attorney, the proceedings should be continued with the real party, taking into account the superior benefit due to the resulting litigation relationship.
In this case, the court must enter into the merits of the case by notifying the lawsuit petition to all the heirs of the deceased person determined by the certificate of inheritance and ensuring the formation of parties.
In the concrete dispute; on 10.11.1958, a mortgage was established in favour of …, Raşit Reçber, … Ünal, …, …, Osman wife Kamile, Osman son Ali, Osman daughter Nuriye, Ahmet wife Halime, Ahmet son İbrahim, Ahmet daughter Saadet, Ahmet daughter Esma, Ahmet daughter Fatma and Ahmet daughter Sevim on the immovable properties numbered 156 and 162 parcels. In the lawsuit filed for the removal of this mortgage, the plaintiffs stated that the MERNIS addresses of the parties who are alive and the heirs of the dead parties should be determined.
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Considering the date of establishment of the mortgage, it is contrary to the ordinary course of life to accept that the plaintiffs should know the addresses of the mortgage creditors, whether they are alive or dead, and if they are dead, who their heirs are. Therefore, there is no violation of the rule of good faith as explained in Article 124/2 of the CCP in the plaintiff’s filing a lawsuit against dead persons. The decision of the Civil General Assembly of the Court of Cassation dated 11.09.2013 and numbered 2013/14-612 Esas 2013/1297 Decision is in this direction.
Therefore, a decision should be made on the merits of the case by determining the heirs of the parties who are dead, whose mortgages are established in favour of the immovables subject to the lawsuit, and by determining the MERNIS addresses of those who are alive, and by ensuring the formation of parties by duly serving the lawsuit petition.
It was not deemed correct for the court to decide to dismiss the lawsuit on the written grounds, leaving aside the issues explained above, and for this reason, the judgement had to be reversed…”
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of resistance was appealed in due time and the documents in the file were read, the General Assembly of Civil Chambers discussed the necessity:
The lawsuit is related to the request for removal of the mortgage.
The court decided to dismiss the lawsuit on the grounds that a lawsuit cannot be filed against a dead person.
Upon the appeal of the plaintiffs’ attorney, the decision was reversed by the Special Chamber on the grounds written above.
The court ruled that the plaintiffs’ attorney could have obtained the information of the relevant persons from the Land Registry Offices and Civil Registry Offices pursuant to Article 2 of the Attorneyship Law, but failed to do so, and that the population records and other documents of the defendants should be attached to the lawsuit petition in accordance with the relevant provisions of the Code of Civil Procedure (CCP), The decision to resist was given on the grounds that the imposition of the duty of completing these documents on the judge is not in accordance with Article 2 of the Attorneyship Law No. 1136 and the relevant articles of the CCP, which is regulated in accordance with the principle of “fair and speedy trial” stipulated in the European Convention on Human Rights, and that a lawsuit cannot be filed against a dead person.
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The decision of resisting was appealed by the counsel for the plaintiffs.
Dispute before the General Assembly of Civil Chambers by way of resistance: Whether the documents regarding the identity of the heirs of the deceased mortgage beneficiary and the determination of the address of these persons should be obtained before the lawsuit is filed, and whether the hostility should be directed to these persons; whether the fact that the plaintiff does not know that the defendants are dead is a situation arising from a material error and contrary to the rule of honesty, and whether the lawsuit can be continued by including the heirs of the deceased in accordance with Article 124 of the CCP in case a lawsuit is filed against the dead person according to the result to be reached here.
As it is known, the capacity of a party in a lawsuit is only possible by having the capacity to enjoy civil rights (Article 50 of the CCP). The enjoyment of civil rights, i.e. the capacity to exercise rights, starts at the moment of conception and continues until the death of the person, provided that the person is born full and alive (Art. 28 of the CCP). For this reason, the CCP stipulates that in the event of the death of one of the parties, if the heirs have not accepted or rejected the inheritance, the lawsuit shall be postponed until the periods determined by law have elapsed; however, the judge may, in cases where there is an inconvenience in delay, decide to appoint a trustee to follow the lawsuit upon request (CCP Art. 55; HUMK Art. 41).
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However, the Law does not specify how to act in the event of a lawsuit against the deceased person. As a rule, it is not possible to file a lawsuit on behalf of and against the dead person. Likewise, as a rule, in case a lawsuit is filed against the dead person, it is not possible to direct the lawsuit to the heirs. Because, as can be understood from the above explanations, the dead person does not have the capacity of a party. In fact, the plaintiff is expected to investigate this capacity of the defendant when filing a lawsuit. However, the fact that the plaintiff does not know that the defendant is dead may sometimes be based on mistake.
As a matter of fact, Article 124 of the CCP states; “A change of party in a lawsuit is only possible with the express consent of the other party. Special provisions in the laws on this subject are reserved. However, a request for a change of party arising from a material mistake or not contrary to the rule of good faith shall be accepted by the judge without seeking the consent of the other party. If the incorrect or incomplete representation of the party in the lawsuit petition is based on an acceptable mistake, the judge may accept the request for change of party without seeking the consent of the other party.
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In this case, the judge shall award the costs of the proceedings in favour of the person who has ceased to be a party to the lawsuit and did not cause the lawsuit to be filed against him”. As emphasised in the preamble of this article, making the change of party conditional on the consent of the defendant would bind the judicial relationship to a rigid form, which is incompatible with the “principle of procedural economy” (Art. 30 CCP), which is one of the principles governing the proceedings.
In this case, if the plaintiff has not been able to determine whether the defendant is alive or not, despite all the efforts, diligence and precautions expected from him, or if the failure to determine is based on a mistake and this situation is not clearly contrary to the rule of good faith, it should be possible to continue the lawsuit against the heirs, i.e. the real parties, who are likely to file a lawsuit against them later in this litigation relationship.
When the concrete case is considered within the scope of all these explanations; the attorney for the plaintiffs stated that a mortgage was established on the immovables numbered 156 and 162 parcels owned by his clients on 10.11.1958, that although his clients wanted to pay the mortgage amount, they could not reach the mortgage creditors and their heirs due to the long time that had passed, and requested and sued for a decision to remove the mortgage on the immovables subject to the lawsuit by depositing the mortgage amount to be determined by the court.
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Considering that the mortgage was established in 1958, it would be contrary to the general life experience to accept that the plaintiffs should know the addresses of the mortgage creditors, whether they are alive or not, and if they are dead, who their heirs are. For this reason, it should be accepted that filing a lawsuit against dead persons will not be contrary to the rule of honesty explained in the second paragraph of Article 124 of the CCP, and that the situation of filing a lawsuit against a dead person is based on mistake and is not contrary to the rule of honesty.
For the reasons explained, it was not deemed correct for the court to make a written decision as a result of an erroneous evaluation without giving the plaintiff the opportunity to direct the lawsuit to the heirs in accordance with Article 124 of the CCP and without giving the plaintiff the opportunity to determine the heirs and notify them if he wishes to direct the lawsuit.
As such, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with, resisting the previous decision was deemed contrary to the procedure and the law, and the decision to resist should be reversed.
CONCLUSION:
With the acceptance of the appeal objections of the plaintiffs’ counsel, the decision of resisting the judgement of the Special Chamber shall be reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being implemented with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100 for the reasons indicated in the reversal decision of the Special Chamber, In case of request, the advance fee for the appeal shall be returned to the depositor, in accordance with the first paragraph of Article 440 of the Code of Civil Procedure No. 1086, the way of correction of the decision shall be open within fifteen days from the notification of the decision, 11. 04.2018, it was unanimously decided.
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