Legal Department 2014/3824 E. , 2015/12948 K.
“text of jurisprudence”
COURT: SALIHLI 2. COURT OF FIRST INSTANCE LAW
DATE : 05/11/2013
NUMBER : 2011/309-2013/808
Tuesday, Dec. 10.11.2015, the notice of appeal for Tuesday, which was set as the day of the hearing, was filed by the acting plaintiffs and the acting defendant of the combined case, and the decision made by the local court regarding the rejection of the original case due to animosity was appealed within the legal period by the acting plaintiffs of the combined case and the acting Attorney G…… P………and other appellant plaintiffs B.. He.. et al. acting Attorney E…….. G…… with Regard to the Main Interventionist V.. M.. Deputy Attorney of Izmir Regional Directorate Ş……………. E…….. G……… they arrived, the plaintiffs, who, despite the notification of the invitation, were appealed A.. G.. et al. the acting lawyer and other plaintiff nobles did not arrive, in their absence, the hearing was started, the oral statements of the deputies who arrived after the adoption of the appeal petition, which was apparently granted and registered, were listened to, the hearing was reported to be over, the work was decided. Bilahare Audit Judge……………the report edited by l was read, his opinion was received. The file was examined, discussed and considered as necessary:
-DECISION-
The main and merged cases are related to the cancellation of the title deed and the requests for arbitration if registration is not possible.
In the original case, the plaintiffs, Heritage Brands Inc.. K..’un Salihli Sart Ç……. K……….. Their shares in the limited liability company, S…………… Share Transfer Agreement dated 11.01.2011 organized handed to the relatives of the defendant, the assignment collusive estate for sale and is Muris you don’t need to sell goods, noting the absence of the defendant’s purchasing power, muris collusion with the cancellation of the transfer and assignment of the process because of the aforementioned shares, in proportion to their shares of the inheritance tenkis registration is not possible if you are asked to decide.
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In the merged case, the plaintiffs repeated the same claims, on the other hand, that the company’s shares were not transferred in accordance with the legal form, according to Article 520 of the Turkish Commercial Code. violation of Article 18 of the Code of Obligations. stating that the transfer of the company’s shares should be canceled in accordance with the provision of the article, they requested that the cancellation of the company’s shares registered on behalf of the defendant and the registration of shares at the rate of their shares should be decided, if possible, during the trial, the shares of the company subject to the lawsuit should be canceled by Muris Ş.. K..’s wife mirasbirakanl the root to H…… S……. K………’they reported that it belongs to a, that he left only the right of usufruct to his wife with the will he made, that the transfer of shares to the defendant is obligatory and superstitious.
As a matter of fact, the administration of the Involved Foundations, the root muris H…… P……. K……….according to the will dated 17.03.1966, which muris made, his wife Ş.. K..’s a right of usufruct until death exists, however, that the right of ownership is not with his death, the shares of the company that belongs to the estate of the defendant, the absolute nullity of the sale by claiming that superstitious were made, with the cancellation of the shares of the company on behalf of the defendant muris H…… S……. K………’he requested that the return of the flour can be decided.
The defendant stated that the shares of the company are securities and cancellation based on the muris agreement cannot be requested, that the plaintiffs of the merged lawsuit are as follows:. K..’s due to the lack of heirs has the rights to sue if the share sale is real, and learned to work in the company for a long time and jobs, school, but after finishing the spa today from the company and started doing teaching to work for the company that is becoming, to know the status mirasbirakan sell their shares when he decided to offer himself has made the allegations that have been made over the nominal value of share sales are not true, noting that in the cases involved, and defended the dismissal of the original lawsuit.
According to the court, the ownership of the company’s share transferred to the defendant is owned by muris Ş.. K..’not a root of H belonging Muris…… S…… K…….., to which it belongs, Sh.. K..upon the death of, it is necessary to act in accordance with the will of 17.03.1966 made by kök muris, the lawsuit filed for the cancellation of the will was dismissed, therefore, the. K..’s lack of authority in terms of the transfer of company shares, sales process with absolute nullity for the reason that they are false due to the animosity of actual case, combined with a denial of the merits of the case, the original case involved the administration’s contention with the foundations of the subject of the acceptance of H shares…… S……. K……… decided to return to the estate, only the principal attorney with the decision in the case was appealed by the defendant to the plaintiffs attorney.
From the contents of the file and the collected evidence; kökmirasbırakan H…….., who was born in 1320. P…… N…..with the childless death of on 11.08.1972, his wife was left as the heir, Sh.. K.. and his brother S……. Y…….., Inc.. K..on the application of the Salihli Court of First Instance, which was organized on 24.10.1972, 1972/1665, with the declaration of succession No. 1972/1465; kök muris H….. 4 Shares of Sabri’s inheritance were accepted, giving full ownership of ¼ with two dry ownership Pp…. Y……….’a, by usufruct of 2/4 of the property, and ¼ of the property, Inc.. K..’a ‘ is where the affiliation is decided, on the other hand; H………. In order to determine that Sabri’s savings on establishing a foundation in his will made on March 17, 1966 were invalid, the case filed by heiress Seher Yildiz on March 08, 1973 was dismissed by the decision of the Salihli Court of First Instance dated 19, 03, 1974, 1973/53 Esas, 1974/205, heiress Ş.. K..as a result of the request made by the Salihli Magistrate’s Court dated 04.03.1977, 1972/150 Basis, 1973/97-2 D. With the decision of the Business Decision No. 1; ”P…….. P…….. O………….. S………… In accordance with the bequest of the shares belonging to the Guest in the spas, the wife of the savings and intifa Ş.. K..it was decided that it belongs to, that it should be written to the company mentioned in this regard in the musekker”, and again the heir is Ş.. K..”the wife of Muris H……… P…….. K………’according to his will dated 17.03.1966, he made a will that he could use his assets until he died,
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the Court of Cassation of the first decision made on 22.11.2001 as a result of the lawsuit filed by the Court of Cassation 2, stating that the case for the cancellation of the will filed by the other heir was rejected, despite this, they” registered the remaining 8 pieces of real estate in the names of the respondent heirs by taking the declaration of succession and making a decision on the transfer on behalf of muris”. In accordance with the proclamation of the Legal Department dated 06.06.2002 and numbered 2002/6282, 2002/7658, the foundation was established to cover the entire term of the bequest of the bequest of 1966, and the executor of the will was appointed. Just as the case directly concerns the Administration of Foundations, the plaintiff’s usufruct will be raised after the foundation is established. In that case, the case should be directed to the Administration of Foundations and the officers of the enforcement of the will of the Mufti of Salihli M……… N…………. S……. Cami Y……….. and T…….. President of the Association S………..n G………it should be directed to, if any, request a sample of wills and evidence from these persons, collect evidence, make a decision based on the result (Decision to Consolidate Case Law No. 16/25 of 17.12.1955). Upon failure to comply with this direction, the plaintiff’s Administration of Foundations, P…….on the grounds that” the establishment of a provision with incomplete research and examination, and again with incomplete adversaries, required a violation”.. H……. G………, M…….. N……. and the Righteous Mufti K………. He………. repeating the same allegations against him on 07.10.2003, the registration of 8 pieces of immovable property that he made the subject of the lawsuit on behalf of the Foundations Administration in accordance with the will, and again on immovable property in accordance with the will, Inc.. K.. 2.as a result of the trial, the case filed by the person willing to decide on the usufruct facility in his favor was combined with the case file re-recorded on the violation and was upheld. 25.03.2004 2003/270 court date and is based on the decision 2004/215; the main and coupled with acceptance of the case, a subject of debate in succession, with the cancellation of the registration of immovable 8 piece istirake H muris………… S……………. It was decided to register guest shares on behalf of muris again, and the decision was appealed by the defendant Foundations administration, which merged with the deputy defendants, but the appeal requests were not considered on the spot and finalized on 21.09.2005, muris Ş.. K..’s……….. S……….. O……. N………. 32 Shares in the Limited Liability Company, Salihli 3. Ş, who was born in 1928, whom the Notary’s Office transferred to the defendant by sale with the ”Limited Liability Company Share Transfer Agreement” dated 11.01.2011, was born in 1928.. K..with the death of ’s on 01.02.2011, the plaintiffs of the main case, the defendant and the out-of-case heirs remained as the heirs left behind, the heir of the root muris Huseyin Sabri Guest, S……………………….it is understood that the plaintiffs of the case, who were also left behind by the death of on 17.11.1988, remain the heirs.
As it is known, Turkish Law No. 743 is the 74th Civil Code of the Republic of Turkey. according to the article ”The foundation is established by official deed or by way of will and acquires a legal entity by registration in the register maintained by the court of first instance, the residence of the foundation. The Court rejected the registration issue V.. M..the user notifies the resen to register with the central registry.” The same principles are preserved in the Turkish Civil Code No. 4721, adopted on 22.11.2001, and the law referred to as 102. in the article; ”The will to establish a foundation is explained by an official deed or savings due to death. The Foundation acquires a legal entity by registering in the register maintained by the settlement court. The process of establishing a foundation with an official deed through a representative depends on the fact that the authority to represent has been granted with a notarized document and the goods and rights to be determined for the purpose of the foundation have been determined in this document. Application to the court is made by the foundation, if the official deed has been issued; if the foundation is based on savings due to death, upon notification of the interested parties or the magistrate who opened the will, or V.. M..this is how the rest is done. The applied court shall take the necessary measures to protect the goods and rights promptly.”the decision has been made.
As for the concrete case, as mentioned in the decisions mentioned above, although Hüseyin Sabri Konuk, the founder of the root heritage, made a will on March 17, 1966, revealed his will to establish a foundation, the Turkish Civil Code No. 743 No. 74. article 102 of the Turkish Civil Code No. 4721, which entered into force later with Article 4721. in accordance with the provision of the article, since there is no question of the existence of a foundation that has acquired a legal entity by registering in the relevant register, the Foundations Administration does not have the right and authority to file a lawsuit in respect of company shares subject to dispute.
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As for appeals against the merged case;
It should be immediately noted that the Decision to Consolidate Case Law No. 1/2 of 1.4.1974 on the transfer of shares of the company, which is a guarantee of personal rights, is not possible to apply.
However, from the contents of the file and the records taken between the documents; the root inheritance of the company shares that were the subject of contention and transferred to the defendant is H……………………… Dec……………………… K………’it is seen that it belongs to a.
In that case, Sh.. K..it is clear that the company has the right and authority to save on company shares at the rate of inheritance share, and the transfer of shares to the defendant relative other than inheritance share is corrupt.
In this case, from the absence of adjectives to the rejection of the case filed by the Foundations Administration, in terms of the merged case, muris Ş.. K..of the share of the company transferred to the defendant, Sh.. K..it is not true that the registration should be decided at the rate of inheritance shares on behalf of the plaintiffs of the case combined with the cancellation of the remaining part of the inheritance share, but it was decided as written by an erroneous assessment.
In the merged case, the plaintiffs ‘ attorney and the defendant’s attorney have appeals for the reasons stated. For the reasons explained by the adoption of the provision (provisional Article 3 of the Law No. 6100.article 428 of the Law No. 1086.14 of the Attorney’s Fee Tariff, which entered into force on 31.12.2014, in accordance with the Article 14. 1.100.00 for the deputies of the appellant parties arriving in accordance with Article 1.100.00.- TL. it was decided by a majority vote on 10.11.2015 that the power of attorney fee should be mutually received and given to each other.
– VOTE AGAINST-
The case is related to the cancellation of the title deed and the request for a review if it is not registered.
The plaintiffs in the original case, those who left an inheritance, Inc.. K..’s S Salihli………….. L…………. Their share in the company, Salihli 3. The notary public to the defendant company with Share Transfer Agreement dated 11.01.2011 held at the estate of handing the age of collusion collusive Muris were for sale and by claiming that because of the cancellation of the assignment process and the transfer of shares, the registration is not possible in proportion to their shares of the inheritance tenkis if you are asked to decide.
The plaintiffs of the merged lawsuit claim that the shares of the company are 520 of the Turkish Commercial Code. 18 of the code of Obligations, that there is no transfer in accordance with the form specified in the article. in accordance with the article, they requested that the transfer be approved, that the shares of the company in the name of the defendant be registered in their names at the rate of inheritance shares and that a decision be made on tenkise, if not, during the trial, the root inheritance of the shares in the case bequeathed to H…….. S………. They have reported that it belongs to K………….., that by will the shares are left only to the wife of Shayan, and therefore the transfer of shares is obligatory and superstitious.
The defendant argued that the shares of the company are securities and cannot be subject to muris exemption, the merged claimants are not heirs, therefore they do not have the right to sue, and that the company’s share sales are actual sales at face value, stating that the rejection of the cases should be decided.
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As a matter of fact, V.. M.. Hussein S legator root………….N………….according to the will dated 17.03.1966, which was made by, and which aims to establish a foundation, H……….. S…………… Hüseyin Sabri, who left the right of usufruct of the guest’s property until his death, stated that Shayan did not have the right of ownership in the company’s shares , that the sale of shares was completely superstitious, and requested that the return of the company shares on behalf of the defendant bequeathed by the cancellation of the Huseyn Sabri bequeathed to the guest’s estate be decided.
According to the Court, due to the animosity of the main case, the rejection of the merged case in principle, with the acceptance of the case of the main participant; It is understood that the limited liability company share sale agreement dated 11.01.2011 and numbered 00429 is absolutely false and that the transaction is to be performed under the will muris H……….. S………… It was decided to return the guest to the guest house, the decision was appealed by the plaintiffs and the defendant in the combined case.
Hüseyin S, who inherited the root from the file contents and collected evidence……………..With the childless death of Guest on 11.08.1972, his wife Ş.as his heir.. K.. and where his brother, the late Star, stayed, Sh.. K..with the death of on 01.02.2011, the main claimants, the defendant and the out-of-court heirs, his brother S………….Y…………… 17.11.1988 it was determined that the plaintiffs of the lawsuit, whose history was also combined with his death, remained heirs.
The subject of the case is the one who left the inheritance, Sh.. K..’s wife Hussein Sabri is located in the guest house………… S………… Ch………….N………….. L……………Sh…………i, Salihli 3 has a 40% stake with a nominal value of TL 800.00 for 32 shares. According to the “ limited Liability Company Share Transfer Agreement” dated 11.01.2011 of the Notary’s Office, the defendant S.. C..’a is the transfer process.
Mismatch, H……….. S…………the inheritance of the company’s shares located on the guest terrace is the most common.. K..depending on who owns the company’s shares, whether the sale of shares of the company in question is legally valid, whether the transaction has been approved, and whether the principal is involved V.. M..in this case, whether the title of the plaintiff party is present or not is related to whether the foundations Administration may request the return of the shares to the trustee.
Legator Hüseyin Sabri, Guest 17.03.1966 dated with a Will; (1) mithatpaşa Caddesi No. 33 is the owner Salihli home and outbuildings, except for movable goods from Kabul after death exists, including a car, Orhaniye street 19/A. two-story store, S……….Shares in hot springs, E…….. E……….. 10.000,00 Turkish Lira shares in the Company are allocated for the purpose and purpose indicated in the will, in the department of determined conditions, p……..N…….. a person with a name and a decision, M.Km.457 (article-2) all the goods that he bequeathed after his death, except for the said salah, his wife, Sh.. K.. by saving until you die, by managing these goods, by working with a salary, S…………. G………’article-3) the same shall apply to the ‘member’, (article-3), (Fig.. K.. if he marries another man or his illegitimate status is determined by a judge’s decision, some of them will be removed from the house by giving household items, (Article-5) If he does not marry another man, See.. K..in order to benefit from the proceeds of all emwali real estate and others in the Koran course, imam orator school and mosque construction and living works, except ( article-4) house 33, where he can stay at home for the rest of his life, after he dies, the house will be transferred to the Delegation as a “mufti house”, P…….. N…….. (article-6) who will receive money and assistance after his death, (article-7) the sale of cars and commercial goods of these coins, and so on.. K..payment of the annual administration cost from the income of shares in Sart Spas after removal, immediate registration and registration of the will in court after his death, M. For the execution of the will.Km.according to the provisions of 497, the mufti of Salihli, the president of the mosque building and living association, Mehmet Kahraman and Selahattin Gümüş were appointed as enforcement officers, and (article-8-9) it was determined how religious ceremonies and prayers would be performed after his death.
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In the file No. 1972/150 Esas,1972 /150 of the Salihli Magistrates ‘ Court, H………. S……………..It was determined that the guest’s will dated 17.03.1966 was opened.
The root legator H………… S……………….. N…….in his will dated 17.03.1966, which determined that his savings on establishing a foundation were invalid, the heir S……………. Y…………..the case filed by him was dismissed by the decision of the Salihli Court of First Instance dated 19.03.1974, 1973/53 Esas, 1974/205 and finalized.
By the decision of the Salihli Magistrates ‘ Court dated 04.03.1973, 1972 /150 Esas, 1973/97-2 Different works, numbered “ P…….. P…….. O………..N……….. Hussein S………….i K……….in accordance with the will of the wife of savings and intifası Ş.. K..it was decided that it belongs to, that it should be written to the company mentioned in this regard as a musekker”.
Sh.. K.., where the case for the cancellation of the will ended in death, the benefit of the property subject to the will was left to him until he died by the will, but despite the will, some H…………………………….by taking notice of the succession of the heirs in the estate I Real Estate to the heirs in asserting 8 piece attached that is provided by the Land Registry on behalf of Hussein Sabri guest with the cancellation of the registration in the first decision with a request to be granted the lawsuit, Y…………Law Offices of date 06.06.2002, 2002/6282 based on Decision No. with 2002/7658 ref, “ with the bequest dated 1966, the bequestee requested the establishment of a foundation to cover the entire term of the bequest, and appointed a probate officer. Just as the case directly concerns the Administration of Foundations, the plaintiff’s usufruct will be raised after the foundation is established. In that case, the case should be directed to the Administration of Foundations, the officers of the enforcement of the will are Salihli, Mufti M…….. K………… P……….. C……….Y…….. and Y…….. E……………..B……….. and S………….. G………….while it is necessary to ask these people for their evidence and make a decision based on its conclusion, the provision made with incomplete examination required to be violated.” upon the deterioration of the grounds, the Administration of Foundations, Salihli, Mufti K………. He…….., Salahattin Hilmi Silver and M…….. K………… as a result of the trial, the case filed against him with the same allegations was combined with the case at hand, Salihli 2. The date of the First Instance Law Court is 25.03.2004. 2003/270 The Main Principle, by Decision No. 2004/215; acceptance of the main and combined cases, registration of 8 pieces of real estate subject to litigation while participating in the inheritance, cancellation of the transaction with Hussein S… K…………….it was determined that the registration of shares on behalf of the company was decided again, and the decision was finalized on 21.09.2005 by passing the Supreme Court audit.
Material facts put forward by the parties, which left a root heritage H……… P……… N………..when the contents of the will issued by the will, the contents of the case file filed and finalized in relation to the will and all the evidence are evaluated together, the H…….who left the root inheritance.. P…….. N…….with the will of 17.03.1966, he established a purpose-built foundation and allocated all his assets to the foundation that will bear his name, except for house No. 33, if he lives in the conditions set out in the will again, his wife has the right to use this asset until he dies.. K..it is understood that he left a.
As it is known, the Turkish Civil Code No. 743, which was in force on 11.08.1972, when Hussein Sabri Guest, who left a stem inheritance, died, is the 74th Civil Code of the Republic of Turkey. in the article; “ The foundation is established by official deed or by way of will and acquires a legal entity by registration in the register maintained by the court of first instance, the residence of the foundation. The Court rejected the registration issue V.. M..the user notifies the resen to register with the central registry.”it was said that the Turkish Civil Code No. 4721, which introduces regulations in the same direction, is 102. in the article; “The will to establish a foundation is explained by an official deed or savings due to death……….. An application to the court is made by the General Directorate of Foundations upon notification of the interested parties or the magistrate who opens the will, if the foundation is based on savings due to death, if the official deed is issued by the foundation. The applied court shall take the necessary measures to protect the goods and rights promptly.”the decision has been made.
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Again; 1 of the Charter on Foundations Established in Accordance with the Provisions of the Turkish Civil Code, 13.08.1991 day, law No. 2159. article 5 is different from the article. in the article, “ A magistrate who opens a will in foundations established by way of a will, a notary who issues an official deed in foundations established by an official deed, a sample of a will or an official deed within seven days V.. M..ne it sends…..if a request for registration by the heir has not been made from the foundation or in case of his death within three months, or if the foundation has a legal entity and has disclosed it, the application for registration of the foundation V.. M.. it is made by.” 3/3 of the Charter on Foundations Established in Accordance with the Provisions of the Turkish Civil Code published in the Official Gazette of 25.03.2013 day 28629, in which the provision is included. in the article ” in foundations established by way of bequest, the heir of the foundation or the person authorized by the foundation to officially manage the inheritance may request registration. If an application has not been submitted by them within three months from the date of opening the will, the application for registration of the foundation V.. M.. it is made by.” date of 27.09.2008, published in the official gazette No. 27.010, 6 of the Director of Foundations. in its article,” Through death-related savings, a foundation can be established to be registered after the death of the foundation. In foundations established in this way, the magistrate sends a sample of the main document for the establishment of the foundation to the General Directorate within seven days……application to the court upon notification of the relevant persons or the magistrate, or V.. M..this is how the rest is done.” according to the regulations; V. On the establishment and registration of foundations established with savings due to death.. M.. he is authorized and on duty.
In a concrete case; will dated 17.03.1966 Testaments with the goal of the foundation with the establishment of the foundation of the goods and rights ozgulenec by determining testamentary will, which is the enforcement officers will be assigned to be finalized by the opening of the will, but the will of immovable property to the foundation spent 8 piece, in spite of the arrival to the heirs upon the result of the lawsuit on 21.09.2005 immovable H…… S….. V. In accordance with the provisions of the specified law, charter and directorship, in which the General Directorate of Foundations is informed of the foundation organization related to the death, that it has returned to its territory.. M.. since it is authorized to make the official foundation of the foundation subject to death, it is indisputable that the title of good-bye is present in the legal interest to return the shares of the company owned by the foundation to the balance sheet and to file a lawsuit for the protection of the assets of the foundation, so the plaintiff involved is V.. M..there is no hit in the acceptance of nün’s case.
On the other hand, the root legator H…… S…. K…….. except for house No. 33, located in terek, all assets are specific to the assets of the foundation to be established by will, until death, the right to usufruct the property in the terek is left to the right spouse, in this case, Fig.. K..as in the admission of, Sh.. K..as a result of the application made by the Salihli Magistrate’s Court on 04.03.1973, 1972 /150 Esa, 1973/97-2 With the decision of different works “ P…. Fuck…… N………….H………….. S…………… K…………’in accordance with the will of the shares belonging to a, the wife of savings and intifası Ş.. K..where it is decided that it” belongs to”, it is again used as a usufruct holder.. K..salihli accepted the lawsuit filed by 2. The date of the First Instance Law Court is 25.03.2004. 2003/270 In accordance with the Decision No. 2004/215; “ Registration of 8 pieces of immovable property in the succession, cancellation of the transaction and registration of Hussein Sabri Guest shares on behalf of again “was decided, for all these reasons; the right to use the shares of the company in question of the case is ensured until death.. K..a person who has left an inheritance that belongs to the foundation, the ownership of which is specific to the foundation, the shares of the company constitute an important part of the assets of the foundation, and therefore there is no right of ownership.. K..considering that the transfer of shares of the company made by the defendant or the sale on 11.02.2011 has no legal basis, the court has also decided to return the shares of the company to the Guest house of Hussein Sabri for processing under the will, considering that the transfer is in the absence of a provision, and there is no hit in making a decision on the return of the shares of the company.
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As a result, by the will dated 17.03.1966, the death-related foundation organization was bequeathed, the shares of the company in question were registered in the assets of the foundation, and the right spouse was kept until his death by the will.. K..’a is a company that transfers shares in which a usufruct is granted on the assets of tereke.. K..on the other hand, there is no legal provision for the transfer of company shares to the defendant, on the protection of the death-related foundation organization and the assets specific to the foundation V.. M..by accepting that the defendant is authorized and authorized, the intervening plaintiff V.. M..since I am of the opinion that it is correct to decide on the adoption of the defendant’s case, for these reasons, the court decision should be upheld by the combined plaintiffs and the rejection of the defendant’s appeals, I cannot agree with the decision of the majority to overturn it.