Liquidation Receivables Cannot Be Claimed For A Vehicle Received As A Birthday Gift
8th Civil Chamber 2015/16133 E. , 2016/6077 K.
“Case Law Text”
COURT :Family Court
TYPE OF LAWSUIT : Property Regime Liquidation
The Court of Cassation has been requested by the attorneys of the plaintiff-counter-defendants … and … and the defendant-counter-defendant … to review the judgement numbered … given by the 14th Family Court of … regarding the partial acceptance and partial rejection of the case for the liquidation of the property regime between the plaintiff-counter-defendants … and … and the defendant-counter-defendant … through attendance without a hearing.
The file was examined and it was understood that the matter was subject to a hearing and a call sheet was sent to the parties by appointing Tuesday … for the hearing. On the day of the hearing, the appellant … appeared in person and represented by his attorney …, and the opposing party … appeared in person and represented by his attorney …. After the hearing was started and it was understood that the request for appeal was within the time limit and the verbal explanations of those present were heard, the hearing was terminated; the file was examined and the necessity was considered:
DECISION
The attorneys for the plaintiffs-merging file defendants … and … stated that the deceased … and the defendant were married in 2001, that the spouses … ‘s death in 2007, explaining that the assets owned within the marriage union were taken with the personal property of the deceased and registered in the name of the defendant, and requested a decision to cancel the immovables and vehicle registrations and to register them in the name of the attorneys, and if not, to liquidate the property regime and to collect the receivable in proportion to the inheritance shares from the defendant with legal interest, and defended the rejection of the combined case.
The defendant-combined file plaintiff … defended the dismissal of the main lawsuit due to the unwarranted filing of the lawsuit, and in the combined lawsuit petition, he requested a decision to liquidate the bank accounts, vehicles and other assets acquired during the marriage union and to collect the liquidation receivable in the ratio of 1/2 from the combined defendants.
The court rejected the request for the cancellation of the immovable and vehicle registration in the main lawsuit, and decided to accept the main lawsuit and the combined lawsuit and to collect the participation receivable of 10.000 TL from the defendant with the legal interest valid from the date of the lawsuit, and to collect the participation receivable of 10.000 TL from the combined defendants with the legal interest valid from the date of the lawsuit; the judgment was appealed by the attorneys of the plaintiff-merging defendants and the defendant-merging plaintiff ….
It belongs to the parties to put forward the material facts, and to the judge to make legal characterisation and to determine the applicable articles of law (Article 33 of the CCP No. 6100). According to the way the claim is put forward, the main case is related to the cancellation and registration of the title deed arising from the liquidation of the property regime based on death, and if not, the claim for participation in the residual value, and the combined case is related to the claim for receivables arising from immovable property, vehicles and household goods based on the same reason.
The deceased … and the defendant were married on 29.12.2001, and the property regime between the parties ended upon the death of … on 20.05.2007. The independent section numbered 9 on … block … parcel subject to the lawsuit was purchased on 08.07.2004, the independent section numbered 5 on … block … parcel was purchased on 26.11.2002, the vehicle with … licence plate was purchased on 11.02.2002 and registered in the name of the defendant …, and the yacht named … was purchased on 26.07.2006 and registered in the name of the deceased ….
1- Based on the scope of the file, the contents of the case documents and the minutes of the trial, the court has made a decision by evaluating the evidence and there is no inconsistency in the decision, 07.10. 1953 dated 07.10.1953, 8/7 YİBK, liquidation creditors cannot request real rights except in exceptional cases, liquidation receivables cannot be requested for the vehicle which is the personal property of the defendant due to the fact that the vehicle subject to the lawsuit was given to the defendant spouse as a birthday gift, the liquidation receivables of the combined plaintiff in terms of the yacht and joint household goods subject to the lawsuit have been duly determined, and since the court has decided in writing depending on the request, the other objections of the attorneys of the parties other than the reasons shown in the following subparagraphs have not been deemed appropriate.
2- As for the other appellate objections of the attorneys of the plaintiff-merging defendants and the defendant-merging plaintiff; although the court has decided to dismiss the lawsuit based on the opinion that the immovables are the personal property of the defendant …, the decision is not in accordance with the scope of the file and the evidence collected.
The independent section numbered 5 subject to the lawsuit was purchased from … Construction Company on 26.11.2002 and registered in the name of the defendant …. In the apartment delivery protocol dated 19.11.2002 between … Construction and the defendant …, it was explained that the sales price was collected from Hatice Tual, receipts dated 06.11.2002 and 13.11.2002 with a total amount of $35,000 were issued, and $295,000 was withdrawn from the joint account of the parties at Akbank on 19.11.2002 when the apartment delivery protocol was issued.
The independent section no. 9 of the immovables subject to the lawsuit was purchased and registered in the name of the defendant on 08.07.2004, and 170.000 TL was withdrawn from the bank account by the deceased on the same date. The dates of the purchase of the immovables, the date of the apartment delivery protocol, the receipts of receipt and the dates of withdrawal of money from the accounts correspond to the same or close days. Plaintiffs’ attorney claimed that the immovable property in question was purchased with the money withdrawn from the joint account and that the deceased had no liquidation receivables.
Considering that the date of the immovable sale protocol and the date of the withdrawal of the money from the bank account coincide with the same day, it is not possible to agree with the opinion of the court that this immovable is the personal property of the defendant and cannot be subject to liquidation.
Separately, although the independent section numbered 6 on block 24, parcel 4 in Mersin is registered in the title deed in the name of the defendant and is the personal property of the defendant, the plaintiffs have made a request by stating that the immovable property has been rented out and that there is a liquidation claim on the rental income. Pursuant to Article 219/4 of the TMK; the income of personal property is in the nature of acquired property and is subject to liquidation. It was not correct for the court to decide to reject the request on the grounds that the lawsuit filed in terms of rental income is personal property.
As for the appellate objections regarding the bank accounts; the expert accountant made a written decision based on the existing balances at the time of liquidation, since the balancing and shifts between the accounts could not be determined due to the intense movements in the bank accounts. As the expert report is inadequate, the bank
It is clearly stated in the expert report that the accounts could not be fully examined. In that case, the court should examine the opening dates of the bank accounts and the account movements through expert experts and determine which accounts are subject to liquidation and the liquidation receivable of the combined plaintiff according to the result to be formed, but it is not in accordance with the procedure and the law to make a decision in writing with incomplete examination.
As such; Taking into account the issues explained above, collecting the evidence of the parties in full, determining the liquidation receivables of the plaintiffs on the immovables subject to the lawsuit and the rental income of the independent section numbered 6, which is the personal property of the defendant, duly determining the liquidation receivables of the plaintiffs on the rental income of the independent section numbered 6, taking into account the opening dates and account movements of the bank accounts, examining the accounts through 2 bankers and 1 account expert expert, determining whether the bank accounts are in the nature of property subject to liquidation, and then making a decision on the merits, it was not correct to make a decision in writing with incomplete research.
CONCLUSION:
For the reasons explained in subparagraph (2) above, the appealed judgement shall be annulled in accordance with Article 428 of the Code of Civil Procedure No. 1086 with reference to the Provisional Article 3 of the CCP No. 6100. For the reasons explained in subparagraph (1) above, the other appellate objections of the attorneys of the parties are rejected for the reasons explained in subparagraph (1) above, according to the reasons for reversal,
it is not necessary to assess an attorney fee in favour of the parties, the parties may request a correction of the decision within 15 days as of the notification of the Supreme Court of Appeals Chamber decision in accordance with Article 440/I of the HUMK, and the advance fee of TL 24.30 shall be refunded to the plaintiff-counter-defendants upon request, and the advance fee of TL 321.30 shall be refunded to the defendant-counter-defendant 05. 04.2016, it was unanimously decided.
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