Provided That The Collusion Case Is Finalised, Adequate Pay Can Be Requested From The Date Of Death
General Assembly of Civil Chambers 2017/1207 E. , 2019/325 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held due to the “cancellation and registration of title deed” case between the parties, upon the appeal of the decision dated 29.05.2012 and numbered 2010/339 E., 2012/243 K. by the plaintiffs’ attorney, the decision of the 1st Civil Chamber of the Court of Cassation dated 14.11.2013 and numbered 2013/5711 E., 2013/15915 K:
“…The lawsuit is related to the request for cancellation of title deed, registration, compensation and ecrimisil based on the legal reason of muris collusion.
The court decided to dismiss the lawsuit.
From the file content and the collected evidence, it is understood that the plaintiffs’ heir … died on 27.11.2008 as a widow with children and that there are 8 heirs, all of whom are children of the heir, and that the heir assigned the independent section numbered 5 on the 2nd floor of the apartment building consisting of 6 independent sections in the immovable property numbered 3 parcel registered in the name of the heir to the defendant son on 21.10.1993 by showing the sale in the title deed.
The plaintiffs filed the present lawsuit claiming that the assignment made by the heir to the defendant was for the purpose of evasion of property from the heir and was collusive, and as a result of the trial conducted by the court, it was seen that the lawsuit was dismissed on the grounds that the assignments were not collusive and the allegations of collusion could not be proven.
As it is known, the collusion, which is defined as “muris collusion” in practice and doctrine, is a relative (mevsuf-qualified) type of collusion. In the aforementioned collusion, the heir really wants to make a contract and transfer the immovable property with title deed. However, in order to deprive his heir of the right of inheritance, he conceals his main purpose and transfers the immovable property that he actually wants to donate by explaining his will in the official contract made at the land registry office in line with the sale or maintenance contract until death.
In this case, since the apparent contract does not conform to the real will of the parties, and the hidden donation contract lacks the formal conditions stipulated in Articles 706 of the Civil Code, 213 of the Code of Obligations and 26 of the Land Registry Law, as explained in the established Court of Cassation Case Laws and the Unification of Beliefs Decision dated l.4.1974 and numbered 1/2, all heirs whose right of inheritance is violated, whether they have a reserved share or not, may file a lawsuit and request the determination of the invalidity of the official contract due to collusion and the cancellation of the title deed record created on the basis of this.
It should be noted immediately that a healthy, fair and correct resolution of such disputes depends on the real aspect of the assignment made to the defendant, in other words, the real will and purpose of the heir without any doubt. Since it is generally difficult to determine and clarify the real will and purpose, which is an internal problem and hidden, it is of great importance that the evidence in this direction is not only collected completely, but also evaluated together and correctly. For this purpose, it is imperative to make use of facts such as the customs and traditions of the country and the region, social tendencies, the ordinary course of events, whether the heir has a just and reasonable reason for making the contract, whether the defendant has the purchasing power, the difference between the sales price and the actual value on the date of the contract, and the human relationship between the parties and the heir.
On the other hand, if a distribution was made by the heir in his lifetime in a way that respects the balance of rights, to an acceptable extent and in a way that covers all heirs, it is also undoubted that the Unification of Beliefs Decision of the Court of Cassation dated 1.4.1974 and numbered 1/2 cannot be applied in the case, since there is no intention to evade property.
When the concrete case is examined in the light of the above principles, the independent sections numbered 1, 2, and 3 in the apartment building consisting of 6 independent sections in the immovable property numbered 3 parcel registered in the name of the inheritor are still registered in the name of the muris, the muris left the plaintiff …, his child from another wife, the plaintiff …, his children from the same wife, the defendant …, the defendant …, the out-of-suit ……, ….., Gülten, Ayşe and Ayten as heirs, and the muris left the out-of-suit children …… and ….. as heirs. and , the non-claimant children of the deceased, and it is seen that a lawsuit was filed against them and the record owners by the plaintiffs of the present case based on the legal reason of muris collusion, a lawsuit was filed between the plaintiff … and the other children of the deceased regarding whether Vahit was the child of the deceased, and it was determined by the Forensic Medicine Institution report that the plaintiff … was the child of the deceased, and there was also a compensation lawsuit between them.
In fact, as mentioned above, it is necessary to accept the applicability of the Unification of Case Law Decision dated 01.04.1974 and numbered 1/2, which constitutes the legal basis of the lawsuits filed based on the legal reason of muris collusion, in the event that the real will of the heir is to evade property from the heir. In other words, the will of the heir is important.
When the evidence collected by the court is evaluated within the framework of the principles explained above, it is indisputable that the transaction is collusive, considering that the real purpose and will of the heir regarding the assignment made by the heir is to evade property from the heir and that the assignments were made for this purpose, and the defendant could not prove that he paid the price.
As it is accepted in the decision of the Supreme Court of Appeal General Assembly of Civil Chambers dated 07.02.1990 and numbered 1989/3-602 Esas 1990/56 decision, since the transfers and assignments based on collusion made by the deceased for the purpose of evading property from the heirs are invalid, the occupation of the defendant, who acquired the property subject to the lawsuit in collusion, cannot be considered in good faith, and the plaintiffs who have been evaded can request ecrimisil for the period starting from the date of death of the deceased until the date of the lawsuit
As it is known, the judgements rendered based on the ground of collusion are explanatory, not innovative.
The transactions subject to such decisions are void and voidable as of the date of their execution and are deemed not to have been executed.
On the other hand, it is not possible to talk about the good faith of the person who is a party to the collusive transaction. The transaction to which he is a party is null and void, and the registration formed in this way is in the nature of corrupt registration.
As such, while the lawsuit should be accepted and the amount of ecrimisil to be determined should be ruled, it is not correct to have a judgement as written with a wrong evaluation…”
The case was reversed with the justification 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 cancellation and registration of title deed based on the legal reason of muris collusion, and if not, compensation and ecrimisil.
The attorney for the plaintiffs stated that the common murisi of the parties (their father) … died as a widow on 27.11.2008, leaving behind eight heirs, all of whom were his children, and that while the apartment building consisting of six independent sections registered in parcel 3 subject to the lawsuit was registered in the name of the muris, the muris sold apartment number 4 to his son …… Bıyık on 28.12.1993, and apartment number 6 to his son ….. on 05.02.1993. Bıyık on 05.02.1993, and the flat number 5 subject to the lawsuit on 21.10. 1993, whereas all of the assignments were for the purpose of evading property from the heir and were collusive, in reality the immovables were donated, the muris, who was retired from the Social Security Institution, did not need money at that time, he lived with the defendant in one of the apartments until his death and received the rent of the other five apartments, he had no justifiable reason to sell an apartment to his son, the immovable property was sold in 1977-1978 between the muris and the plaintiff … The plaintiffs claimed and sued for the cancellation and registration of the title deed of the immovable subject to the lawsuit in proportion to the plaintiffs’ inheritance shares, and if this is not possible, the collection of the price corresponding to these shares, and also for the five-year period from the date of the lawsuit, without prejudice to their rights regarding the excess, the collection of 1. 000,00TL ecrimisil for a period of five years from the date of the lawsuit.
The defendant stated that he purchased the immovable property by paying 40.000. 000TL, which was the fair value at that date, the sale price was shown low in the title deed, the sale was real and all his siblings knew this situation, the muris was not retired in 1993 and had no salary, he told his children who lived in the immovable either buy it or pay rent by saying that he needed money to retire, although they built the building with the money he earned by working as a journeyman, he and his two brothers bought the flats they lived in by paying money, the plaintiff … ‘s work, the four flats on it were completed with his own earnings, he was a journeyman for sixteen years on the same date and his financial situation was good, Since 1983, he has been living in the flat numbered 5 subject to the lawsuit, that his father built the flats for them saying “I will only give it to my three sons because the others have no right”, that they completed the building by spending all the money they earned with the enthusiasm of youth for the construction of the building, that the murisin plaintiff … ‘s offer to sell the flat he was living in, but Ramazan did not accept the price he offered, the plaintiff … was not present at that time, Vahit’s being Vahit’s brothers emerged after the death of their father, and the conditions for ecrimisil did not occur, and requested the dismissal of the lawsuit.
The local court stated that the two flats in the building were built by the deceased and the four flats above them were built with the contributions of the defendant and his brothers ….. and ……, and due to these contributions, the defendant was assigned to flat number 5 by ….. and …… to flat number 4 and 4. and …… settled in flats numbered 4 and 6, the defendant has been living in the flat subject to the lawsuit since 1983, in 1993, the deceased needed money to pay his pension premium debts, for this reason, he gathered his children and announced that he wanted to sell the flats first to his children living in them, and if they did not accept, he would sell them to other people, whereupon the defendant and ….. and …… and …… bought the flats on different dates of the same year by paying their prices, the deceased paid his SSI premium debts with a part of the sale price, spent some of the sale price for household goods, he also helped his daughters from the sale price, and some of the sale price was spent on his daughter…… and then spent it during his marriage twice, the sisters, who were heard as witnesses of the defendant and who had benefits in winning the case, confirmed the defence exactly, the three flats are still registered in the name of the muris, the muris could transfer them if there is an intention to evade property, the difference between the price in the title deed and the actual value is not sufficient to accept the existence of collusion alone, and the decision was made to dismiss the lawsuit on the grounds that the low price was due to the defendant’s contribution to the flat.
Upon the appeal of the plaintiffs’ attorney, the decision was reversed by the Special Chamber for the reasons explained in the title of the decision above.
The local court decided to resist on the grounds in the first judgement, and the decision was appealed by the plaintiffs’ counsel.
The dispute before the General Assembly of Civil Chambers by way of resisting; whether the assignment made by the joint heir to the defendant’s son by way of sale is actually for the purpose of evasion of property from the heir and is collusive, and according to the conclusion to be reached here, whether it is necessary to accept the request of the plaintiff heirs for cancellation and registration of the title deed, and in this context, whether it should be decided to collect the ecrimisil to be determined for the period between the date of death of the muris and the date of the lawsuit.
Collusion, which is defined as an intentional incompatibility between the will and the declaration, is regulated in Article 19 of the Turkish Code of Obligations No. 6098 (repealed Article 18 of the Code of Obligations No. 818) in our positive law, and the said article states that “In determining and interpreting the type and content of a contract, the real and common will of the parties shall be taken as basis, regardless of the words used by mistake or to conceal their true intentions.”
Accordingly, collusion can be defined as the agreement of the parties to create an appearance that does not conform to their real will and does not give rise to a judgement and result between them, with the aim of deceiving third parties.
Since collusion is mostly related to the interpretation of the contract, it has been extensively analysed in the doctrine and practice and is subject to certain rules. Both in the doctrine and in practice, collusion is divided into two groups as absolute and relative collusion; in absolute collusion, the parties do not want to make (create) any legal transaction, they only make the necessary declaration of will for an apparent legal transaction; in relative collusion, the parties really want to make a certain legal transaction, but in order to hide it, they make a declaration of will to create the appearance / impression that another legal transaction has been established.
Whether the parties desire to create only an appearance or to make a second hidden transaction, the apparent transaction does not have any consequences in principle, since it does not correspond to the real will of the parties. In the case of collusion, the fact that the apparent transaction is devoid of any legal consequences stems from the fact that the common will of the parties is in this way.
The type of collusion, which constitutes the subject matter of the present case and is called “muris collusion”, has a great place and importance in Turkish Law. The majority of the collusion cases are related to the collusion of the heir.
Except for the general provision of the Turkish Code of Obligations explained above, there is no regulation on muris collusion in our laws. Although the source of the muris collusion is mostly derived from the jurisprudence of the Court of Cassation and scientific opinions, its main source is the Unification Decision dated 1.4.1974 and numbered 1/2.
With the Decision dated 1.4.1974 and numbered 1/2 of the Unification of Case Law, “In the event that it is found that a person has declared his will in the direction of sale before the land registry officer about the immovable property registered in the land registry, which he actually wants to donate, in order to deprive his heir of his right of inheritance, all the heirs whose right of inheritance is violated, whether they have a reserved share or not, may claim that the apparent sales contract is collusive based on Article 18 of the Code of Obligations. Article 18 of the Code of Obligations that the apparent sale contract is collusive and the hidden donation contract lacks the condition of form, and that this right of action shall not affect the rights provided by Articles 507 and 603 of the Civil Code, which are in question for valid contracts”.
Upon the application for the amendment of the aforementioned decision on the grounds that it has consequences that may disturb the sense of justice and public conscience, the decision of the Grand General Assembly of the Court of Cassation Unification of Jurisprudence dated 16.3.1990 and numbered 1989/1 E., 1990/2 K. states that “…This decision was issued by taking into consideration the special conditions and requirements of the society. That is to say, especially in small rural areas, in order to deprive the daughters of inheritance, the executor, in agreement with the son, realises the transfer of the assets that he actually wants to donate, by maliciously showing the sale. In addition, a man who remarries due to the death of his wife or divorce, in order to deprive his children from his previous wife from inheritance with the influence of the subsequent wife, transfers the assets that he actually wants to donate to the subsequent children by showing them as sales. Here, the Decision on Unification of the Case Law dated 1.4.1974 and numbered 1/2 was issued in order to provide girls with equal inheritance rights with boys and to ensure equality between the children of the deceased in the face of collusive dispositions, and it is clear that this regulation meets the needs of the society and ensures equality before the law. There is no reason that would justify the change of this solution style.” With the explanations dated 1.4.1974 and numbered 1/2, the reasons for the adoption of the Unification Decision dated 1.4.1974 and numbered 1/2 in Turkish Law were also mentioned and it was decided that there was no room for its amendment.
The Unification Decision dated 1.4.1974 and numbered 1/2 is related to the collusive transactions made by the heir in the assignments of the immovables with title deeds.
In the case of Muris’ collusion, the heir and the other party to the contract usually conceal the donation agreement between them with a sale or a contract of maintenance until death. In other words, the heir and the other party have agreed on the actual transfer of the property. İn both the apparent and concealed agreements, the sincere intention is to assign the property. However, the nature of the apparent contract of sale or the contract of maintenance until death is changed by the collusive contract, and a secret donation contract is also organised. Since the nature of the apparent contract is completely changed, the muris collusion also has the characteristic of “full collusion”.
Muris collusion, like other relative (mevsuf-qualified) collusion, consists of four elements.
a-Objective Contract: The contract that the heir arranges with the other party in order to evade the property from the heirs, to prevent the objections and lawsuits to be filed by them, in other words, to deceive them, in a way that does not correspond to his real will and does not have any provisions and consequences is called an apparent contract.
b- Aim to Deceive Third Parties (Heirs): When the muris collusion is considered from this point of view, its difference from other relative collusions is that it is made for the purpose of deceiving the heirs. More precisely, in the case of the muris collusion, the one who wants to deceive (the one who makes the collusive transaction) is the heir, and the one who wants to be deceived is the heir. On the other hand, in absolute and relative collusion, the third person who is intended to be deceived is not required to be an heir.
The existence of an heir or heirs who are intended to be deceived or deceived at the time of the collusive contract is sufficient for the realisation of the purpose (intention) to deceive. In this case, it is clear that the heir, who is the heir according to the date of death of the heir and who should receive inheritance rights from the estate, has the legal interest and right to file a lawsuit after the death of the heir for the determination of collusion by standing against the collusive transaction made on the date when he has not yet gained the title of heirship. The fact that he was not an heir at the time of the collusive agreement has no effect on the right to file a lawsuit for collusion. In fact, if an heir proves the existence of the muris collusion at the end of a cancellation and registration lawsuit filed due to collusion and ensures the return of that immovable to the estate, since the heir, who was not an heir at the date of the collusive contract, but who gained the title of heirship on the date of the death of the heir, receives a share of that immovable, not granting him the right to file a lawsuit due to the fact that he was not an heir at the date of the collusive contract would create a clear contradiction and would not be in accordance with the logic of law.
If the heir has distributed his property among his heirs in a balanced manner within reasonable limits, it is no longer possible to speak of muris collusion, since there is no intention and will to deceive or deceive the heirs.
In such assignments, the purpose of the heir is not to evade property from the heirs, but to share the property among the heirs in his/her lifetime. For the acceptance of this distribution, which is also defined as “equalisation” in practice, the heir must make a distribution among all the heirs, and establish a reasonable and tolerable balance, even if there is not complete equality in the distribution.
If the heir has given a share only to one or more of the heirs, or if there is an imbalance in the distribution that exceeds the limits of reasonableness and tolerance, the element of deception will be formed, since the purpose of evading property from the heir will be deemed to be superior, not the distribution. In this case, the heir or heirs who did not receive a share or were given a small share will have the right to file a lawsuit.
In order to understand whether there is equalisation or not, it is necessary to listen to witnesses, to request information and documents from the relevant authorities, to collect all party evidence, and to compare the goods and values given to each heir with each other through expert witnesses.
c-The Collusion Agreement Explaining the Voluntary Incompatibility Between the Declarations and Will of the Parties: The collusion agreement in the case of Muris collusion is a contract that changes the nature of the apparent contract between the inheritor and the other party.
The collusion agreement is not subject to any formal conditions. It can be made verbally as well as in writing. In practice, it is observed that the collusion agreement is often concluded together with the secret agreement, even intertwined with it. However, the fact that it is concluded together with the secret contract does not eliminate the nature of the collusion agreement as a separate contract.
In both “party” and “testamentary collusion”, the existence of a collusion agreement is a condition for the formation of collusion. The heir may make the collusion agreement in person or through his/her representative. The fact that the heir makes the apparent agreement in person does not prevent him/her from making the collusion agreement through his/her attorney.
Collusion agreement must be made before the apparent agreement or at the latest at the same time. The subsequent agreement does not constitute a collusive agreement, but a second agreement that changes the previous valid agreement.
d-Secret Agreement: The last element of the collusion of the testator is the secret contract, as in all relative collusion. The heir wishes to transfer his property through donation and makes a contract in accordance with this will. However, he hides this contract behind a contract of another nature that is not in accordance with his real will. The contract that is not in accordance with his real will, which is known and disclosed, is called “apparent contract”, and the contract that is in accordance with his real will, but hidden and concealed, is called “hidden contract”.
In the case of the collusion of the testator, the secret contract is always made in the form of a donation contract. Therefore, what is hidden from the other heirs in muris collusion is not the assignment of the property, but the nature of the assignment agreement. In the absence of a secret contract, it is not possible to speak of muris collusion.
At this point; since the apparent contract does not comply with the real will of the parties, and the secret contract lacks the formal conditions, all heirs whose inheritance rights are violated may request the determination of the invalidity of the official contract due to collusion and the cancellation of the title deed registration.
Each heir, whether or not he has a reserved share, may request the determination of the invalidity of the collusive agreement made by the heir for the purpose of evading the inheritance, and if a title deed registration has been created based on this agreement, the cancellation of the title deed registration and its registration in his name in proportion to his share, or its reinstatement (return to the estate). Since the heir is outside the collusive agreement and resists it, he is in the status of a third party. Although the heir is the successor (universal successor) of the person who made the fictitious contract, since the heir, by making a fictitious contract, prevents the right of inheritance that should legally be transferred to him and transfers all or part of it to someone else, he resists this contract and requests its invalidity.
It is seen that the will of the heir and the interest of the heir are in conflict. In a way, the heir tries to protect his legal right against the heir. He files a lawsuit against the will of the heir. In this respect, there is no doubt that the heir acts as a third party in the case of muris collusion.
Of course, the heir has the right to freely dispose of his property other than the reserved share in accordance with the law and to assign it to others as he wishes. However, it must also be accepted that if the heir transfers his property in a manner that does not comply with the law, the heir who suffers damage after death has the right to resist this act and to request the determination of its invalidity.
In other words, just as the heir has the right to transfer the property other than the reserved share in accordance with the law, the heir has the right to resist the legal dispositions of the heir, which are made by the heir in violation of the law and deprive him of the right of inheritance, and to request the cancellation of the assignment and registration.
The main thing is that the inheritance of the heir shall be transferred to the heirs as stipulated by law. Although the heir has the right to dispose of the property other than the reserved share as he wishes, he must comply with the formal conditions stipulated in the law when making this assignment. If the formal condition is not complied with, the heir, who will be the owner by law, has the legal interest to request the cancellation of this assignment due to the lack of form.
However, the heir has also assigned the reserved share of the heir by hiding the donation agreement behind an accelerated contract such as a sale or a contract of maintenance until death. This bad faith of the heir and the right of the other party in co-operation with him based on bad faith cannot be protected by the law.
It is sufficient for the person who will file a case of collusion to be the heir of the heir who made a collusive contract. He does not have to be the heir with a reserved share. Since the heir who files a lawsuit is a third party, he/she may prove his/her case with any kind of evidence.
As a matter of fact, the same principles were adopted in the decision of the General Assembly of Civil Chambers dated 16.06.2010 and numbered 2010/1-295 E., 2010/333 K.
It should be noted that a healthy, fair and correct resolution of such disputes depends on the real aspect of the assignment made to the defendant, in other words, the real will and purpose of the inheritor to be revealed in a way that leaves no room for doubt. Since it is generally difficult to determine and clarify the real will and purpose, which is an internal problem and hidden, it is of great importance that the evidence in this direction is not only collected completely, but also evaluated together and correctly. For this purpose, it is imperative to make use of facts such as the customs and traditions of the country and the region, social tendencies, the ordinary course of events, whether the heir has a just and reasonable reason for making the contract, whether the defendant has the purchasing power, the difference between the sales price and the actual value on the date of the contract, and the human relationship between the parties and the heir.
When the concrete case is examined in the light of all these explanations; the plaintiffs and the defendant are siblings, the muris is the father of the parties, the children of the muris other than the plaintiff … are common children with his wife Keziban, Vahit was born in 1959 from an extramarital relationship and was registered in the father’s household on 14.01. 1976 in the father’s household, but despite the registration in the population, the muris concealed the existence of the said son from his family and his environment until his death, on the other hand, while the entire apartment building with a total of six apartments together with the independent section subject to the lawsuit was registered in the name of the muris, the muris sold the independent section numbered 4 to his son …… Bıyık on 28.12.1993, the independent section numbered 5 subject to the lawsuit to the defendant’s son … on 21.10.1993, and the independent section numbered 6 to his son ….. on 05.02.1993. Bıyık on 05.02.1993, the price shown in the official contract based on the transfer of the immovable property is 10.000.000TL, the actual price determined as a result of the discovery made by the court is 140.000.000TL, and it is understood that the assets of the murisin consist of these six independent sections. As it can be seen, there is a clear and excessive difference between the values, and a great need that would require the heir to sell three separate immovable properties in the same year was not reflected in the file. In this case, considering the statements of the plaintiff witnesses that the deceased was in a good situation in those years, that he did not need to sell immovable property and that he donated the independent section subject to the lawsuit to the defendant, the majority of the Board concluded and concluded that the heir acted with the intention of evading property from the estate and that the assignment made was not actually a sale but a donation.
After it is understood that the transfer made by the deceased was collusive, since there is also a request for ecrimisil in the case at hand, the dispute should be evaluated from this aspect as well.
As it is known, ecrimisil is a compensation that the right owner may request from the malicious possessor, as stated in both the doctrine and judicial decisions, and in the Decision of Unification of Case Law dated 08.03.1950 and numbered 22/4; it was emphasised that fuzuli occupation cannot be likened to the lease agreement established by the parties with mutual and appropriate wills, that it should be considered an unfair act due to its nature, and that the damage caused by unfair occupation should be compensated
As a matter of fact, in the first paragraph of Article 995 of the Turkish Civil Code No. 4721, it is stipulated that the possessor who is not in good faith is obliged to pay compensation for the damages caused to the right holder and the products he obtained or neglected to obtain due to the unjust detention of the thing he is obliged to return.
The acceptance judgement to be established as a result of the title deed cancellation and registration lawsuits filed based on the legal reason of muris collusion is not constructive (constitutive) but explanatory (explanatory). The transactions subject to such decisions are deemed not to have been executed since they are void with absolute nullity as of the date of execution, and the cancellation provision shall have retroactive effect. On the other hand, it is not possible to talk about the good faith of the person who is a party to the collusive transaction. Since the transaction to which he/she is a party is deemed null and void, the registration in this way is in the nature of corrupt registration.
In that case, considering that the inheritance will be transferred to the heirs upon the death of the heir and the heirs will have the right as of the date of death, it is undoubtedly that the persons who use the immovable property in this way will be liable for ecrimisil (compensation for unfair occupation) since their use after the date of death will be in the nature of unfair occupation.
During the discussions at the General Assembly of Civil Chambers, it was stated that the plaintiffs could not prove that there was a reason that required the deceased to evade property from the other heirs, and that the plaintiff witness statements heard in the file consisted of abstract statements, and in order to reveal the true will and purpose of the deceased, Ayten, who was the sister of the parties and made a statement as a defendant witness, The declarations of Ayşe and Gülten are important, as these persons were involved in the events and they also have interests in winning the case, when these declarations and the scope of the file are evaluated together, it is seen that the deceased, who had no social security, made treatment expenses for his wife who was suffering from cancer and died in 1991, on the other hand, the other flats in the building, the first two floors of which were completed beforehand, were owned by the defendant and the defendant’s brothers … . . with …… ‘s labour and contributions, in 1993, the deceased needed money to pay his pension premium debts, for this reason, he gathered his children and announced that he wanted to sell the flats first to his children living in them, upon which the defendant and his two brothers bought the flats on different dates of the same year by paying their prices, it is normal to keep the sales prices low due to their contributions in the construction of the flats, Moreover, the fact that the price shown in the title deed is low compared to the real value is not sufficient alone for the acceptance of the fact of collusion, the deceased retired in the following years by paying his premium debts with a part of the sale price, and spent some of it for household goods and gold he bought because he had two religious marriages after the death of his wife, he also married one of his daughters after the date of sale, and took care of his other daughter and children who returned home after divorce, and according to the bank records available in the file, he spent some of the money on accounts opened in his own name and his daughter… …. into the joint account they opened with …., and that the fact that the decedent, who was the owner of six separate independent sections, sold only three of them when he had the opportunity to transfer all of them if he had the intention to evade property, shows that there was no intention to evade property, and that the decision of the local court referring to all these issues is appropriate and should be approved, but this opinion has not been adopted by the majority of the Board for the reasons explained above.
As such, it is against the procedure and the law to resist the previous decision while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
Therefore, the decision of resistance should be reversed.
CONCLUSION:
It was decided by majority of votes in the second meeting held on 21.03.2019, in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being implemented according to the Provisional Article 3 of the Code of Civil Procedure No. 6100, to accept the appeal objections of the plaintiffs’ attorneys and to return the pre-appeal fee to the depositor if requested, and to open the way of decision correction within fifteen days from the date of notification of the decision in accordance with Article 440 of the same Law.
You can access our other article examples and petition examples by clicking here.