Non-contentious Judicial Decisions Do Not Constitute Final Judgement In Material Terms
1st Civil Chamber 2015/14807 E. , 2018/12630 K.
“Case Law Text”
COURT OF FIRST INSTANCE
CASE TYPE :
ABSENTEEISM – CANCELLATION OF TITLE DEED – REGISTRATION
At the end of the absenteeism, deed cancellation and registration case between the parties, the decision of the local court regarding the rejection of the case was appealed by the plaintiff’s attorney within the legal period, the file was examined, the report of the Examining Judge … was read, his explanations were listened to, and the necessity was discussed and considered;
-DECISION-
The lawsuit is related to the requests for absenteeism, cancellation of title deed and registration in the name of … pursuant to Article 588 of the Turkish Civil Code numbered 4721.
The plaintiff claims that the dead … son of …, who was a shareholder with 4266/27600 shares in the immovable parcel numbered 2384 with the decision numbered 2004/547 Main and 2004/1018 Decision of the … Civil Court of Peace, was not recognised and there were no heirs, and the … Property Manager was appointed as a trustee in accordance with the provisions of the law numbered 3561, and that the immovable was officially managed for 10 years from the appointment of the trustee, and that the heirs of the deceased … son Islam are absent pursuant to Article 588 of the TMK. In accordance with Article 588 of the Civil Code, the defendant claimed that the heirs of the deceased … son Islam should be declared absent and the share in the immovable property subject to the lawsuit should be registered in the name of …..
The defendant did not bring a defence.
The court decided to dismiss the lawsuit due to the lack of a cause of action on the grounds that the lawsuit was filed before the expiry of the ten-year formal administration period stipulated in Article 588/1 of the Civil Code.
From the file content and the collected evidence, it is understood that the 4266/27600 share in the immovable property numbered 2384 parcel subject to the lawsuit is registered in the name of Islam, son of …, with the decision of the … Civil Court of Peace dated 07.09.2004 and numbered 2004/547 Main, 2004/1018 Decision, it was decided to appoint the … Property Manager as a trustee to represent the said share, there is no annotation on this issue in the title deed record, and the present lawsuit was filed on 24.09.2014.
As it is known, in Article 1 of the Law No. 3561 on the Appointment of Property Officers as Trustees, “The purpose of this Law is to regulate the procedures and principles regarding the appointment of the highest property officer of the neighbourhood as a trustee, his powers, delegation of authority, management and expenses of the trusteeship property, fees to be paid to the trustee and the personnel in charge, and other issues in order to ensure the protection of the interest of … on the assets of a person due to the fact that he cannot be found for a long time or his place of residence is unknown”, and in Article 2 of the same Law.
Article 2 of the same Law reads as follows: “Pursuant to Article 427 of the Turkish Civil Code dated 22/11/2001 and numbered 4721, in cases where it is necessary to appoint a trustee for the purpose of officially managing the share of an heir who cannot be found for a long time or whose place of residence is unknown or who cannot be proved to be alive when the inheritance is opened, the guardianship authority shall investigate whether the Treasury has rights and interests on the property of these persons from the highest property officer of the neighbourhood. In the event that it is understood that the Treasury has rights and interests, the highest property officer of the neighbourhood shall be appointed as the management trustee.
” Pursuant to Article 431 of the Turkish Civil Code No. 4721, the rules regarding the appointment of a guardian shall also apply to the appointment of a trustee. Article 382/b-19 of the Code of Civil Procedure No. 6100 stipulates that guardianship affairs are non-contentious judicial affairs, Article 385 stipulates that simple trial procedure should be applied to the extent appropriate to its nature, and Article 388 stipulates that in cases where there is no contrary provision in the law, non-contentious judicial decisions shall not constitute a final judgement in material terms.
As for the concrete case, it is not correct to conclude that the period of administration with the trustee will not start due to the fact that the decision on the appointment of the trustee is an uncontested judicial matter and the uncontested judicial decisions do not constitute a final judgement in the material sense, since the decision has not been finalised.
As such, it is inappropriate to make a written judgement while the merits of the matter should be examined and a decision should be made accordingly.
With the acceptance of the plaintiff’s objections of appeal, it was unanimously decided on 20.09.2018 that the judgement (with reference to the provisional Article 3 of the Law No. 6100) shall be annulled in accordance with Article 428 of the HUMK No. 1086.
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