Decision On The Prescriptive Period For The Injunction Lawsuit
14th Civil Chamber 2015/1687 E. , 2015/6049 K.
“Case Law Text”
COURT : Izmir 7th Civil Court of First Instance
DATED : 13/05/2013
NUMBER : 2009/45-2013/222
At the end of the proceedings upon the petition filed by the plaintiffs’ attorney against the defendants on 02.02.2009 for the cancellation of the disinheritance; the judgement dated 13.05.2013, which was given on the acceptance of the case, was requested by the attorney for the plaintiffs and the attorney for the defendants without a hearing, and upon the notification made for the appointed 02.06.2015, the attorney for the plaintiffs who appealed, Av. N..Ş…came. No one else came. The open hearing started. After it was decided to accept the appeal petition, which was understood to be in due time, the verbal explanations of the appellant were heard. The hearing was declared over. The matter was left for decision. Subsequently, the file and all the papers in it were examined and the necessity was considered:
DECISION
In their lawsuit against the defendant Nükhet, the plaintiffs claimed that Meral, the deceased of the parties, disinherited them with her will dated 24.08.2004 in İzmir … Notary Office, that there were no reasons for disinheritance, and they requested the cancellation of the disinheritance and its consequences; and with their petition dated 15.07.2011, they claimed that the immovable property donated by the deceased to the internal defendants in order to evade property from the estate should be subject to equalisation and directed the other defendants.
The defendant Nükhet defended the dismissal of the lawsuit by stating that the reasons for disinheritance were real; and the internal defendants defended the dismissal of the lawsuit by stating that the statute of limitations had expired and that the parties could not be changed in the lawsuit.
Court decided that the plaintiffs should pay 65.924,63 TL to the defendant Nükhet separately, and that each of the plaintiffs can claim 21.066,92 TL separately from the internal defendants.
The judgement was appealed by the counsel for the defendants and the counsel for the plaintiffs.
1- According to the judgement, the collected evidence and the content of the file, the other appellate objections of the defendants’ attorney and the plaintiffs’ attorney other than the scope of the following paragraph were not deemed appropriate and should be rejected.
2-The case is related to the cancellation of disinheritance and equalisation claims.
The heir with a reserved share can be completely or partially removed from the inheritance by unilateral testamentary disposition. Reason for disinheritance must be clearly and concretely shown in the testamentary disposition. The reasons for disinheritance can be categorised under two main headings: ordinary and protective. Ordinary grounds for disinheritance are committing a serious offence against the heir or one of the heir’s relatives or not fulfilling the obligations arising from family law to a significant extent. Since the heir always has the right of disposition for the share other than the reserved share, the conditions for removal are not sought for the share other than the reserved share.
The excluded heir may object to the exclusion by filing a lawsuit against the legal heirs of the heir and the heirs’ descendants, if any. In the lawsuit to object to the removal, the burden of proving that the grounds for removal have been fulfilled falls on the defendant heirs or the testamentary creditor benefiting from the removal.
If the reason for exclusion is not shown or cannot be proved by the defendants, the excluded heir may request the cancellation of his/her reserved share. Even in this case, the excluded heir cannot claim the amount exceeding the reserved share and the exclusion process is fulfilled outside the reserved share. If there is a clear mistake about the reason for the exclusion, the exclusion is completely cancelled and is considered as if no exclusion was made.
In the concrete dispute, the muris Meral was cancelled by the İzmir … Notary Public of Izmir on 24.08.2004, the testament of the plaintiff o.. V… did not fulfil her filial duty, did not return the savings she borrowed, and stole property; and she excluded the plaintiff daughter Nilgün from the inheritance on the grounds that she did not fulfil her filial duty. The deceased has no heirs other than the plaintiffs and the defendant Nükhet. The defendant Nükhet, who has the burden of proof pursuant to Article 512 of the TMK, could not prove that the reasons for exclusion were realised. For this reason, since the dismissal was invalid pursuant to Article 512/last of the TMK, the plaintiffs continued the lawsuit with the request for equalisation.
In the report dated 28.03.2013, the assets and liabilities of the inheritance were determined and the amount to be subjected to the restitution was determined and the reserved shares of the plaintiffs were found. However, although the amount to be assessed in the deceased’s compensation account at İşbank was accepted as 45.674,78 TL, it was reported that the amount transferred through İ…B… was 48.644,66 TL. In addition, although the plaintiffs stated that they paid the dues and tax debts of the immovable properties belonging to the deceased after the death of the deceased, a sufficient examination and research was not conducted in this regard and these amounts were not taken into consideration in determining the liabilities of the estate.
In addition , although the three-month expenses of the persons living with and cared for by the deceased were determined as 1.800,00 TL pursuant to Article 507/2 of the TMK, it was not clearly determined with whom the deceased lived and by whom the deceased was cared for.Considering the deficiencies explained above, the assets and liabilities of the estate of the deceased on the date of death should be determined and the disposable amount should be determined.
I.n addition to all these, pursuant to Article 571 of the TCC, the action for restitution must be filed within one year from the date of learning that the reserved share has been damaged, and in any case within the prescriptive period of ten years. In the concrete case, the plaintiffs stated in the petition dated 02.02.2009 that the deceased transferred the property owned by the deceased to the internal defendants, who are the children of the defendant Nükhet, through donation. The plaintiffs made this property the subject of the lawsuit in their internal lawsuit petition dated 15.07.2011. It is seen that the one-year statute of limitation has expired pursuant to Article 571 of the Civil Code.
Therefore, while the court should dismiss the lawsuit against the internal defendants on the grounds that the statute of limitations has expired, it was not deemed correct to make a decision as written, and the judgement should be reversed for these reasons.
CONCLUSION:
For the reasons explained in subparagraph (1.) above, the other appellate objections of the defendants’ counsel and the plaintiffs’ counsel are rejected, and for the reasons explained in subparagraph (2.) above, the appeal objections of the defendants’ counsel and the plaintiffs’ counsel are accepted and the judgement is reversed, 1.100 TL Supreme Court of Appeals hearing attorney fee is to be taken from the defendants and given to the plaintiffs, and it was unanimously decided on 02.06.2015, with the way of decision correction being open within 15 days from the notification of the decision.
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