The Request For Registration Of The Share Of Immovable Property In The Name Of The Plaintiff Includes The Request For Determination

The Request For Registration Of The Share Of Immovable Property In The Name Of The Plaintiff Includes The Request For Determination

General Assembly of Civil Chambers 2017/2539 E. , 2018/1149 K.

“Case Law Text”

COURT :Commercial Court

At the end of the trial held due to the “cancellation of the co-operative partnership and cancellation and registration of the title deed” case between the parties, the decision dated 09.09.2011 and numbered 2009/313 E., 2011/457 K. given by Bakırköy 2nd Commercial Court of First Instance on the dismissal of the case was appealed by the plaintiff’s attorney, and with the decision of the 23rd Civil Chamber of the Court of Cassation dated 17.04.2012 and numbered 2012/91 E., 2012/2907 K:
“… The plaintiff’s attorney stated that he transferred his client’s shareholding in the defendant co-operative and half of the immovable property numbered 785 block parcel to the defendant …, the defendant co-operative refused to accept the transfer on the grounds that the co-operative share could not be divided and it was not possible to divide the immovable property into two according to the zoning legislation, whereupon his client and the defendant … the defendant was made to appear as the owner of the share in the co-operative records on the condition that half of the immovable property and the share belonged to the plaintiff, the fact that his client was the owner of half of the share was annotated in the co-operative records, the defendant did not fulfil the obligations imposed under the share transfer agreement, the purpose of the transaction between the parties was the transfer of half of the share, Since such a transfer is not possible, the real transaction between the parties is null and void with absolute nullity and the apparent transaction is invalid due to collusion, claiming that the registration of the cooperative share and the immovable property in the name of the defendant should be cancelled and registered in the name of his client.
Defendant …’s attorney argued that the lack of construction on the plaintiff’s own share was not due to the defect of his client, that the relevant institutions did not allow the construction although his client made the necessary initiatives, and that the lawsuit filed by the plaintiff for the performance of the contract is pending at the Istanbul 7th Civil Court of First Instance, and requested the dismissal of the lawsuit.
The defendant co-operative did not respond to the lawsuit.
Court, according to the claim, the adopted expert report and the scope of the file, the agreement was made between the plaintiff and the defendant for the transfer of ½ of the share of the co-operative, and since the co-operative did not decide to register ½ of the share by stating that the share could not be divided, it was agreed that half of the share and the immovable attached to the share would belong to the transferor with the contract between the plaintiff and the defendant, but the entire share was transferred to the defendant, In this case, it was decided to dismiss the lawsuit on the grounds that there was a faith transaction between the parties, the parties did not act contrary to the faith transaction, the partnership gained by the defendant through the faith transaction was valid, the plaintiff did not make a claim due to breach of contract, the plaintiff filed a separate lawsuit for the performance of the contract and the rights arising from the contract and the lawsuit was pending.
The decision was appealed by the plaintiff’s attorney.
1- According to the writings in the file, the evidence on which the decision is based, the reasons for the decision, and the appreciation of the evidence, the other appellate objections of the plaintiff’s attorney other than the following sub-paragraph are not deemed appropriate.
2- The lawsuit is related to the cancellation of the share transfer made by the plaintiff to the defendant due to collusion and the registration of the share and the immovable attached to the share in the name of the plaintiff. As can be understood from the summary above, the plaintiff’s attorney stated that an agreement was reached between his client and the defendant regarding the transfer of ½ share and the immovable attached to the share, that the transfer of ½ share was in violation of Article 19 of the Cooperatives Law No. 1163. Article 19 of the Cooperatives Law No. 1163, the transfer of ½ share was not realised because the transferred part of the immovable was below the minimum amount determined in the zoning plan, although this was the real purpose of the parties, it was recorded in the cooperative records that the entire share belonged to the defendant and that the plaintiff was entitled to ½ of the immovable and the share, and the registration of the immovable and the share in the name of the plaintiff was requested with the claim that the apparent transaction was collusion and the transaction intended in reality was null and void due to the prohibition of the law. According to Article 19/1 of the Cooperatives Law No. 1163, a cooperative partnership includes at least one share. In the face of this provision of the law, it is not possible for more than one person to be a partner for the same share or to transfer half of a share to another person, except for the exception provision regarding the situation between heirs.
The immovable property subject to the lawsuit is registered in the name of the co-operative since it has not been transferred to individual ownership. Pursuant to the agreement between the defendant and the plaintiff, the parties agreed that the determined amount of the share and the immovable property attached to the share belonged to the plaintiff. As a rule, the plaintiff may file a lawsuit based on this agreement only after the immovable is registered in the title deed in the name of the defendant. While the immovable property is still registered in the name of the co-operative, a lawsuit cannot be filed for ½ share and the immovable property in a way to enable the transfer of the half share of the co-operative partnership, nor can it be said that the relationship between the parties is collusive. In accordance with the rule that there is a little in the many, the plaintiff’s request for cancellation of the title deed also includes the request for determination. For this reason, it was not deemed correct for the court to decide to dismiss the lawsuit completely, while it should be decided to make a determination decision considering that the plaintiff is entitled to ½ of the immovable attached to the share….”
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 the General Assembly of Civil Chambers was appealed in due time and the documents in the file were read, the necessity was discussed:
The lawsuit is related to the cancellation of the defendant’s co-operative partnership and the registration of the plaintiff as a co-operative partner and the cancellation of the title deed of the immovable allocated to the co-operative partnership and registration in the name of the plaintiff.
The plaintiff’s attorney stated that his client sold half of his shareholding right to the defendant … while he was a shareholder of the defendant co-operative, that their application for the transfer to be recorded in the co-operative records was rejected by the co-operative on the grounds that the share could not be divided by the co-operative, and that they agreed that ½ of the co-operative partnership share and ½ of the immovable property allocated to the share belonged to the plaintiff, and that they agreed that the plaintiff’s entire shareholding right belonged to the defendant … Defendant … has not fulfilled its obligations although it has fulfilled its obligations by transferring the shares to the defendant …, claiming that this apparent transaction is null and void since the real transaction between the parties is the transfer of half of the shares, but it is shown as if the entire share has been transferred, and requested and sued for the cancellation of the co-operative partnership of the defendant … and the registration of this partnership right and the immovable property numbered 785 block 5 parcel to which the partnership right is dedicated in the name of the plaintiff.
The defendant’s attorney stated that the plaintiff is actually about the cancellation of the decision of the board of directors of the cooperative, which was signed on 24.11.1998 and entered into the records of the cooperative, and that the cancellation of the decision taken in accordance with the procedure and law was not requested within the period stipulated in the law, that his client does not have the status of a party in this case, since the plaintiff can make a claim by filing a deed cancellation and registration lawsuit against the plaintiff only after the individuation, and that the plaintiff has no party status in this case, and that the plaintiff is not a party to this case. Civil Court of First Instance registered in 2008/224 and the outcome of the pending lawsuit should be awaited, the plaintiff’s claims on the merits are not relevant, the fact that the plaintiff cannot build on his own share is entirely due to legal regulations, his client does not have any obstacle, the plaintiff filed a lawsuit before this lawsuit in Küçükçekmece 2nd Civil Court of First Instance. Civil Court of First Instance before this lawsuit, that they did not make a collusive transaction as claimed by the plaintiff, and even if they did, they could not rely on their own collusion, and that there is a one-year grace period for filing a lawsuit against collusive transactions and that the lawsuit was not filed in due time, and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that there is a fiduciary transaction between the parties and the acquisition made according to the fiduciary transaction remains valid, the fact that the partnership is in the name of the defendant does not contradict the fiduciary transaction because the co-operative partnership was transferred to the defendant due to the fiduciary transaction between the parties, especially since the subject of the lawsuit is related to the registration of the immovable property subject to the co-operative partnership.
Upon the appeal of the plaintiff’s attorney, the decision was reversed by the Special Chamber for the reasons explained above.
The local court stated that the plaintiff’s request in the petition of the lawsuit was related to the cancellation of the partnership registration in the name of the defendant … and the registration of the immovable property subject to the lawsuit in the name of the plaintiff, and that there was no amendment and extension of the request during the trial, and therefore, it was decided based on the request (Art. 26 of the CCP). 26), and although it was stated that a determination decision should be made in accordance with the principle of “there is a little in the majority” in the reversal decision, it was decided to resist on the grounds that accepting that there is a request for determination within the request for cancellation and registration of title deed, since the plaintiff’s request is clearly related to registration, constitutes a violation of the principle of adherence to the request.
Upon the appeal by the plaintiff’s attorney, the decision was reversed by the General Assembly of Civil Chambers on the grounds that the decision of resistance was not duly established.
The local court decided to resist on the previous grounds; the decision of resistance was appealed by the plaintiff’s attorney.

The dispute before the General Assembly of Civil Chambers by way of resistance: In the case of cancellation of the co-operative partnership and consequently the cancellation and registration of the title deed; whether the decision of determination in accordance with the rule that there are few in the majority will constitute a violation of the rule of adherence to the request; whether a determination decision can be made according to the result to be reached here.
It is necessary to evaluate the dispute separately for both defendants.
I- Regarding the appellate objections regarding the lawsuit filed by the plaintiff’s attorney against the co-operative;
It should be noted immediately that in the first paragraph of Article 19 of the Cooperatives Law No. 1163, “Each person who enters the cooperative must have at least one partnership share. The articles of association, by determining the highest limit, may allow more than one share to be taken by a partner within this limit.”. According to this article, each person who enters a co-operative must have at least one share. Therefore, only one partner may be admitted to the co-operative for a share and the rights attached to this share.
However, the Law on Cooperatives and the Articles of Association of the Cooperative do not contain a clear provision on how the relationship between these persons and the cooperative will be conducted in the event that more than one person becomes a member for a share. In this case, it is necessary to apply the first paragraph of Article 432 of the Turkish Commercial Code No. 6102 (TCC) regarding joint stock companies by reference to Article 98 of the Law No. 1163.

The first paragraph of Article 432 of the TCC stipulates that “If a share is jointly owned by more than one person, they may appoint one of them or a third person as a representative to exercise their rights arising from the share in the general assembly.” Accordingly, since the share cannot be divided against the co-operative, if more than one person is a shareholder of a share, they may exercise their rights against the co-operative through a common representative. If they do not appoint a common representative, the notification to be made by the co-operative to one of them shall be valid for all of them.
In the concrete case, even though the plaintiff and the defendant … are joint shareholders of a share in the co-operative, since they can only exercise their rights against the co-operative through a joint representative and since the shareholding in the co-operative cannot be divided, it is not possible to claim against the co-operative that the partnership between the plaintiff and the defendant … is half and half. As such, the decision of resistance regarding the dismissal of the lawsuit filed against the co-operative is appropriate.
During the discussions in the General Assembly of Civil Chambers, although it is not possible to divide the share and assert this against the co-operative in accordance with Article 19 of the Co-operatives Law, it has been argued that it is appropriate to overturn the decision of the local court by stating that this issue is known by the co-operative since the co-operative records contain documents stating that 1/2 of the share subject to the lawsuit and the immovable property to which it is dedicated belongs to the plaintiff, and therefore it should be accepted that the determination to be made will bind the defendant co-operative, but these opinions have not been accepted for the reasons explained above.
II- As for the appellate objections of the plaintiff’s attorney regarding the dismissal of the lawsuit filed against the defendant …;
The main purpose of the civil procedure law is to protect the subjective rights of the parties arising from the material law. Its subject matter is the recognition of these subjective rights and their protection in case of violation or threat of violation. Therefore, with the application of persons whose rights are violated, a judicial relationship is established between the person and the State. Depending on the request of the person, this relationship may be in the nature of a litigation relationship, a non-contentious judicial relationship or a temporary legal protection relationship. While the law of civil proceedings is basically based on these relationships, certain principles have also emerged. Articles 24 to 33 of the Code of Civil Procedure No. 6100 (CCP) regulate the principles governing the proceedings. Some of these principles are also included in the Code of Civil Procedure No. 1086.
One of the principles governing civil law proceedings is the principle of adherence to the claim. This principle is clearly stated in Article 26 of the CCP. Accordingly, the judge is bound by the claims of the parties. Leaving aside the limited number of exceptions specified in the laws, the judge cannot decide more than the request or anything other than the request. However, there is no obstacle for the judge to decide less than the result of the request according to the situation.

In essence, the principle of claim-boundness states that the judge is bound by the request of the parties. The first meaning of the principle of dependence on the claim is that the court cannot decide on the matter that the party has not requested. Accordingly, what the party has requested and what the judge may or may not decide on is determined by looking at the statement of claim. The subject of this determination is the desired legal result. In this respect, the judge’s decision-making limit is determined by the statement of claim
The second meaning of the principle of adherence to the request is that the court cannot decide more than the request of the party (Art. 26 CCP). This meaning attributed to the principle of adherence to the request is also related to the “principle of saving” stated in Article 24 and the “principle of being brought by the parties” stated in Article 25.
Finally, another meaning of the principle of adherence to the request is that the judge cannot decide on something other than what is requested. The inability to decide on something other than what is requested is determined by comparing the conclusion part of the petition with the conclusion part of the judgement.
However, being bound by the claim does not apply if it is determined that the plaintiff has less than the right claimed as a result of the proceedings (Art. 26 CCP). Deciding for less than the claim is based on the principle of “there is less in the majority”. This rule, on the other hand, refers to deciding for less than the claimant’s claim, which is of the same nature with the result of the claim.

As a matter of fact, when a lawsuit is filed, the plaintiff’s demand is to obtain legal protection from the court to the extent that it has a fulfilment in material law. In other words, the plaintiff’s request will not mean “either decide all of what I want or do not decide anything if you cannot decide all of it”, even if the expectation of the plaintiff is not fully met. Because the plaintiff’s desire is to protect or re-establish his right, which he believes to be violated in material law, by filing a lawsuit.
When the concrete case is considered within the scope of all these explanations, although it is determined from the documents in the file that ½ share of the immovable belongs to the plaintiff, it is not possible to decide to register ½ share of the immovable in the name of the plaintiff due to the fact that the cooperative has not passed into individual ownership, and as a rule, cancellation and registration of the title deed cannot be requested without registering the immovable in the name of ….
However, in accordance with the rule that there are few in the majority, it should be accepted that the request for registration of ½ share of the immovable property subject to the lawsuit in the name of the plaintiff also includes the request for determination. Because every action for performance is a more comprehensive action that also includes the request for determination on the same subject. Although the existence of the plaintiff’s right has been determined, the legal uncertainty between the parties will be eliminated and legal peace will be ensured with the determination decision to be made in cases where a judgement of performance cannot be established. In that case, it is not correct to decide to dismiss the case while the court should make a determination decision.
As a matter of fact, in the Unification of Case Law Decision dated 07.07.1965 and numbered 1965/5 E., 1965/5 K. and in the decision of the General Assembly of Civil Chambers dated 31.01.2004 and numbered. 2004/7-411E., 2004/477 K. dated 31.01.2004, it is accepted that the request for determination is the precursor of the action for performance and each action for performance carries a request for determination.
During the discussions in the General Assembly of Civil Chambers, The decision to determine that the claimant is entitled to ½ share of the immovable property allocated to the partnership is contrary to the regulation in Article 19 of the Cooperatives Law and the dispute between the parties is not about the determination of the share amount, but about the cancellation of the cooperative partnership and the registration of the immovable property allocated to the partnership in the name of the claimant Although it has been argued that it is not possible to establish a judgement of determination in accordance with the rule that there is less in the majority, and that the local court decision should be approved by stating that there are no conditions for filing a claim for determination in the case, these opinions have not been adopted by the majority of the Board for the reasons explained above.
As such, it is not in accordance with the procedure and the law to resist the previous decision while the reversal decision of the Special Chamber, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
In that case, the decision to resist in this respect should be reversed.

CONCLUSION

1) For the reason explained in sub-paragraph (I) above, the appellate objections of the plaintiff’s attorney are rejected and the decision of resistance is APPROVED for the reasons explained above,
2) For the reasons explained in subparagraph (II) above, the appeal objections of the plaintiff’s attorney are accepted, and the decision to resist is DISMISSED in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied according to the Provisional Article 3 of the Code of Civil Procedure No. 6100, for the reasons shown in paragraph 2 of the Special Chamber’s reversal decision. It was decided by majority of votes on 30.05.2018, to return the pre-appeal fee to the depositor if requested, in accordance with Article 440 of the same Law, within fifteen days from the notification of the decision, the way of correction of the decision is open.

DISSENTING OPINION

Pursuant to Article 19 of the Cooperatives Law No. 1163, each person who enters a cooperative must have at least one share of membership. In other words, each person who enters the co-operative must have at least one partnership share.
The reversal of the special chamber in its decision of reversal as follows: “It was not deemed correct to decide to dismiss the lawsuit completely while the court should make a determination decision considering that the plaintiff is entitled to ½ of the immovable property attached to the share…” was in the nature of showing a direction contrary to the above written article of law.
In addition, there are no conditions for filing a determination case in the concrete case.
In this respect, since I am of the opinion that the decision of the local court to resist is appropriate and should be approved, I dissent from the reversal decision of the honourable majority.

DISSENTING OPINION

The lawsuit is related to the cancellation of the defendant’s co-operative membership and the registration of the plaintiff as a co-operative member and the cancellation of the title deed of the immovable allocated to the co-operative membership and registration in the name of the plaintiff.
The plaintiff’s attorney; in summary in the petition of lawsuit: While his client was the owner of the immovable property numbered Küçükçekmece, block 785, parcel 5, which corresponds to the membership number 48 of the defendant cooperative, he transferred half of the membership right to the defendant with the transfer agreement dated 24/11/1998 and numbered 38756 journal no. of Istanbul 7th Notary Public for 32. 000 TL to the defendant … ‘s, the application for the transfer to be recorded in the co-operative records was rejected on 22/12/1998 on the grounds that the co-operative share could not be divided, then they signed the agreement between themselves on 17/03/1999 and decided that half of the transfer right would be valid among themselves and decided to transfer the membership as if the co-operative membership had been transferred as required by law,

In accordance with this agreement, the client consented to the transfer of the membership right on 17/03/1999, the transfer was registered with the decision of the co-operative dated 29/04/999 and the half share of the plaintiff was annotated, afterwards, although the client fulfilled its obligation, the defendant built on its own share, the client could not build on its own share, the client was deprived of the immovable property worth 1. 500.000 USD worth of immovable property and co-operative membership rights, that they sent notices through a notary public, that they could not get any result, that Küçükçekmece 2. Civil Court of First Instance No. 2006/138, but the lawsuit was rejected, the main purpose of the parties was to transfer the ½ share of the immovable property owned by the plaintiff and to build a building on the part of the defendant cooperative share …

The defendant requested the cancellation of the cooperative membership in the name of the defendant and the registration of this membership right in the name of the plaintiff, and the registration of the immovable property numbered 785 block 5 parcel of land to which the membership right is dedicated in the name of the plaintiff.
In his reply, the defendant’s attorney summarised: The plaintiff filed the case numbered 2008/224 in the Istanbul 7th Civil Court of First Instance and the case is still pending and should be waited, the plaintiff’s claims on the merits are not relevant, the plaintiff’s inability to build on his own share is entirely due to legal regulations, his client does not have any obstacles, the plaintiff filed a lawsuit before this case in Küçükçekmece 2. Civil Court of First Instance and the case was dismissed in 2006/138, that there is no collusion as claimed by the plaintiff, and that even if there is such a matter, a person cannot rely on his own collusion, and requested the dismissal of the lawsuit.

1.4. Dispute Whether the decision to make a determination in the case for the cancellation of the membership of the cooperative and the cancellation and registration of the title deed, in accordance with the rule that there are few in the majority, will constitute a violation of the rule of adherence to the request; whether a determination decision can be made according to the conclusion to be reached here.

Relevant Legal Legislation

Article 24/1-2-3 of the Code of Civil Procedure: Saving principle
(1) A judge shall not automatically examine and decide a case without the request of either party.
(2) Except as expressly provided by law, no person shall be compelled to file a lawsuit in his favour or to claim his right.
(3) The authority to dispose of the subject matter of the lawsuit, which the parties may freely dispose of, shall continue after the lawsuit is filed.
Article 26 of the Code of Civil Procedure: Principle of Claim Subordination
(1) The judge is bound by the outcome of the parties’ claims; he may not decide more than that or anything else. Depending on the circumstances, he may decide for less than the result of the claim.
(2) The provisions of the law that the judge is not bound by the claims of the parties are reserved.
Article 19/1 of the Cooperative Law No. 1163:

Partnership Shares, Personal Receivables

ARTICLE 19- Each person who enters the co-operative is required to take at least one partnership share. The articles of association may allow more than one share to be taken by a shareholder within this limit by determining the highest limit.
Considering the legal regulations related to the above-mentioned subject;
There is no dispute between the parties that ½ of one co-operative membership belongs to the plaintiff and ½ belongs to the defendant …. Likewise, in the reversal decision of the special chamber, this situation is also accepted by the high special chamber by stating that “the parties have agreed that the determined amount of the share and the immovable attached to the share belongs to the plaintiff”.
In this case, it is undisputed that the membership of the co-operative can be at least one share, the co-operative membership share cannot be divided, and this claim cannot be asserted against the co-operative with the above-mentioned legal articles and the established case law of the Supreme Court of Appeals. The dispute between the parties is not about the determination of the amount of shares of both the plaintiff and the defendant, but about the cancellation of membership and registration request.

Therefore, although there is no request for the amount of shares that are not subject to the dispute, there is no legal benefit in establishing a determination judgement by saying that there is a little in the majority. Because; if a court decision is necessary at that moment in order to reach one’s right, it can be said that there is legal interest. If there is no need for a court judgement, legal benefit cannot be mentioned. The judge is bound by the results of the parties’ claims and must consider whether there is legal interest in the case.
As a result, the decision of the local court to resist is appropriate and since I am of the opinion that it should be approved, I cannot agree with the decision of the majority in the direction of reversal with different justification.

You can access our other article examples and petition examples by clicking here.