There Is No Possibility Of Fulfilment Of The Promise Of Sale Until The Unitary Ownership Is Converted Into Shared Ownership
14th Civil Chamber 2021/130 E. , 2021/979 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the hearing held by the plaintiff’s attorney upon the request for cancellation and registration of the title deed based on the immovable sales promise agreement with the petition filed by the plaintiff’s attorney against the defendants on 22.04.2013; the Supreme Court of Appeals examination of the judgment dated 15.11.2018 on the acceptance of the case was requested by the attorneys of some of the defendants, and after it was decided to accept the petition of appeal, which was understood to be in due time, the file and all the papers in it were examined and considered accordingly.
DECISION
The lawsuit is related to the request for cancellation and registration of title deed based on the immovable sale promise agreement.
The plaintiff’s attorney stated that the …, the murisi … of the defendants, executed a contract of promise of sale dated 27.05.1998 and numbered 12489 and dated 27.05. 1998 dated 27.05.1998 with the sales promise agreement dated 27.05.1998 and numbered 12489, … province, Second District district, … Neighbourhood 371 block 490 parcel (new 398 block 574 parcel) numbered 380m2 area of detached garden house real estate and 348m2 area of detached irrigated field real estate registered in the same place 398 block 628 parcel numbered 348m2 area of detached irrigated field real estate, the title deed owner … son … promised to sell all of the inheritance shares to the plaintiff, the entire sales price was paid in advance, but the title deed was not transferred, and requested and sued for the cancellation of the inheritance shares of the defendants’ murisi … in the real estates subject to the lawsuit and the registration of the title deed in the name of the plaintiff.
Some of the defendants stated that they accepted the lawsuit; some of them defended the dismissal of the lawsuit.
Upon the court’s decision to accept the lawsuit, with the decision of our Chamber dated 19.10.2015 and numbered 2014/14102 Main and 2015/9178 Decision dated 19.10.2015, “…The debtor of the sales promise agreement dated 27.05.1998, which is relied on in the lawsuit, … died on 21.03.2013, … According to the certificate of inheritance dated 07.02.2013 obtained from the 2nd Civil Court of Peace, his brother’s descendants were included as heirs, and the certificate of inheritance dated 08.04.2014 of the same court belonging to …, the wife of the record owner … during the lawsuit. 04.2014, …’s share of inheritance was transferred to … (İlçin), … (İlçin), … (İlçin), …, the children of his son …, there is a contradiction between the two separate letters of inheritance, and after the contradiction between the two letters of inheritance is resolved, a decision should be made according to the result by ensuring the party formation according to the new letter of inheritance to be obtained.”
As a result of the trial conducted by complying with the reversal order, the court decided as follows: “The lawsuit is accepted; cancellation of the title deed of the shares that will correspond to … daughter … from … son …, the owner of the immovables registered in … province, Second Region district, … neighbourhood, Hospital Road Mevkii, parcel 398, parcel 574 and parcel 398, parcel 628, and registration of the title deed in the name of the plaintiff … son … with Turkish ID number …”.
The judgement was appealed by the attorneys of some of the defendants.
The immovable sale promise agreements, which take their source from Article 29 of the Turkish Code of Obligations numbered 6098, are a type of contract that must be issued ex officio before a notary public in accordance with Article 237 of the Turkish Code of Obligations numbered 6098 and Article 706 of the Turkish Civil Code numbered 4721 and Article 89 of the Notary Public Law numbered 1512, in other words, its validity is subject to the official form requirement, imposes obligations on both parties and provides personal rights. The promissory creditor may request the fulfilment of the obligation by forfeiture in the action for cancellation and registration of title deed to be filed pursuant to Article 716 of the Turkish Civil Code No. 4721, when the performance is not fulfilled by the seller who is obliged to transfer the ownership with the immovable sale promise agreement. Undoubtedly, the person who demands the performance of the debt from the other party must have fulfilled his/her own obligations.
In order to decide on the acceptance of the lawsuits arising from the sales promise agreement, there must be the possibility of performance of the agreement. In the event that one of the partners of a joint venture (in the form of co-operation) promises to sell an immovable subject to joint ownership (Article 701 of the TCC) to a person outside the partnership, although the contract is valid as a commitment transaction, the possibility of performance of the contract cannot be mentioned until the dissolution of the joint venture. This situation is also valid in the event that there is a record in the title deed of the immovable promised to be sold, or the sale of immovable is promised in violation of Article 8 of the Soil Conservation and Land Use Law No. 5403, or the immovable subject to the promise is the subject of a property dispute in another court.
On the other hand, pursuant to Article 297/2 of the Code of Civil Procedure No. 6100; in the conclusion part of the judgement, without repeating any words belonging to the reasoning, the judgement given about each of the claims, the obligations imposed on the parties and the rights granted to the parties, under the sequence number; it is necessary to show clearly, in a way that does not arouse doubt and hesitation.
As for the concrete case; although the murisi of the defendants undertook to sell to the plaintiff all of the inheritance shares to be inherited from … son of …, the title deed owner of the immovables numbered 398 block 574 parcel and 398 block 628 parcel, the plaintiff … son of … and the murisi of the defendants … are not the joint heirs of the title deed owner … son of …… Because the plaintiff’s father … İlçin is alive, the plaintiff … cannot be the heir of his grandfather … son ….. The murisi of the defendants has undertaken the sale of the immovable properties to the third person. As such, since the joint ownership continues in the immovables subject to the lawsuit, the possibility of performance does not arise until the conversion to shared ownership.
Since the court should have decided to reject the lawsuit since the possibility of performance has not yet arisen, it was not deemed correct to decide to accept the judgement, and it was necessary to decide to revoke the judgement.
According to the acceptance; while it is necessary to establish a verdict in a way that leaves no room for doubt and is suitable for execution, it is not correct to establish a verdict in a way that is not suitable for execution without clearly stating the cancelling share ratios as “Deciding to cancel the title deed registration of the shares that will correspond to … daughter … from … son …, the owner of the immovable property, and to register and register the title deed in the name of the plaintiff … son …”.
CONCLUSION:
For the reasons explained above, it was unanimously decided on 17.02.2021, with the acceptance of the appeal objections of the attorneys of some of the defendants, the judgement will be DISMISSED, the appeal fee will be returned to the depositor, and the way of decision correction will be open within 15 days from the notification of the decision.
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