Failure To Investigate The Population Registration Information And Address Of The Inheritor These Issues Were Not Asked From The Land Registry Office
T.C. JUDICIARY
14th Civil Chamber
Main: 2015/12937
Decision: 2016/2555
Date of Decision: 01.03.2016
REQUEST FOR THE ISSUANCE OF A CERTIFICATE OF HEIRSHIP – THE INFORMATION ON THE POPULATION REGISTER AND THE ADDRESS OF THE DECEASED WERE NOT INVESTIGATED AND THE LAND REGISTRY OFFICE WAS NOT ASKED ABOUT THESE ISSUES – THE JUDGMENT IS REVERSED
SUMMARY: There is no doubt that all means should be used to determine the population records and addresses of the deceased and his heirs and to obtain this information. However, the court did not ask the Land Registry Directorate for the land registry records and the underlying documents, the contract table regarding the immovable property owned by the deceased, and did not investigate the deceased’s population registration information and address. If there is an immovable property belonging to the deceased, the title deed and the underlying documents, as well as the population records showing the lower and upper lineage of the alleged brother of the deceased…., should be brought and a decision should be made according to the result, but it was not deemed correct to decide to dismiss the lawsuit, and for this reason, the judgment should be reversed.
(4721 S. K. art. 30)
Case and Decision: At the end of the hearing held upon the request for the issuance of a certificate of inheritance by the plaintiff’s attorney with the petition dated 25.03.2015; the judgment dated 10.07.2015 on the dismissal of the case was requested by the plaintiff’s attorney to be examined by the Court of Cassation, 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:
The lawsuit is related to the request for a certificate of inheritance.
The plaintiff’s attorney claimed and sued that the deceased…. died on 10.03.1963 as single and childless, that he was the grandson of the deceased’s brother…’s son… and that the certificate of inheritance should be issued.
Court stated that the District Population Directorate, where the siblings of the deceased…., …., …., … and … were the heirs of the deceased, underwent a fire before 1955, the records were created in 1956 with local spelling, the registration records before 1955 (death, marriage, divorce, etc.) and the population records of the deceased’s siblings…, …. and …. could not be reached, and even if the heirs of …. could be identified from the witness statements, … and …. … and …. passed away as single and childless, therefore, no other evidence other than the abstract statement of the plaintiff regarding the death of …. and …. as single and childless was submitted to the file by the plaintiff, and since it was understood that no record could be reached with the response letter of the General Directorate of Population and Citizenship about the heirs, the lawsuit was dismissed on the grounds that it could not be proven.
The judgment was appealed by the plaintiff’s attorney.
Article 30 of the Turkish Civil Code No. 4721 stipulates that birth and death can be proved by the records in the civil registry, and if there is no record in the civil registry or if it is understood that the record is not correct, the real situation can be proved by any evidence. In our law, the principle of preparation by the parties is valid in cases subject to contentious jurisdiction and the judge is bound by the claims of the parties.
The judge is obliged to make a decision based on the facts alleged and the evidence put forward by the requesting parties. In cases subject to non-contentious jurisdiction, the principle of ex officio investigation prevails. Decisions rendered in cases filed without an adversary and subject to non-contentious jurisdiction do not constitute final judgment, and these decisions can be changed or eliminated as a result of an annulment action to be filed.
In the concrete case; it is undoubtedly necessary to determine the population records and addresses of the deceased and his heirs and to use all means to obtain this information. However, the court did not ask the Land Registry Directorate for the land registry records and the underlying documents, the contract table regarding the immovable property owned by the deceased, and did not inquire about the deceased’s population registration information and address. If there is an immovable property belonging to the deceased, the land registry and the underlying documents, as well as the population records showing the lower and upper lineage of the alleged brother of the deceased…., should be brought and a decision should be made according to the result, but it was not deemed correct to decide to dismiss the lawsuit, and for this reason, the judgment should be reversed.
Conclusion For the reasons explained above, it was unanimously decided on 01.03.2016 to accept the plaintiff’s appeal objections and to VACATE the judgment, and to refund the prepaid fee to the depositor upon request.
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