Precedent Decision On Contribution Share Claim
T.C. JUDICIARY
2nd Civil Chamber
Main: 2016/6780
Decision: 2016/12633
Date of Decision: 28.06.2016
CLAIM FOR CONTRIBUTION RECEIVABLE – CLAIM FOR CONTRIBUTION RECEIVABLE RELATED TO IMMOVABLE PROPERTIES ACQUIRED DURING THE PERIOD OF SEPARATION OF PROPERTY – INAPPROPRIATENESS OF THE DECISION TO CHARGE INTEREST ON THE TOTAL AMOUNT OF THE JUDGMENT VALID FROM THE DATE OF THE LAWSUIT – AFFIRMING THE JUDGMENT WITH CORRECTION
SUMMARY: Since the lawsuit is related to the contribution share receivable related to the immovables acquired during the period of separation of property regime, it was not correct to decide to charge interest on the total amount of 31.611,00 TL as of the date of the lawsuit, while interest should be charged from 10.04.2008, the date of the lawsuit, for the amount of 5.000 TL requested in the petition, and from 01.12.2014, the date of the amendment, for the amount of 26.611,00 TL. The appellate objections of the defendant regarding the interest are appropriate for the reason explained, and although the judgment should be reversed in terms of the part of the judgment regarding the interest, since this issue does not require a retrial, it was necessary to decide to approve this part of the judgment by correcting it.(Art. 438/7 of the Code of Civil Procedure)
(1086 S. K. art. 438)
Case and Decision: At the end of the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed by the defendant … for the contribution share receivable and by the plaintiff for the rejection of the request for cancellation and registration of the title deed by way of participation and the amount of the contribution receivable, the documents were read and discussed:
1- ) The defendant appealed the judgment in terms of the accepted contribution claim, and the plaintiff appealed the judgment in terms of the rejection of the request for cancellation and registration of the title deed by way of participation. The request for appeal by way of participation is strictly connected to the main appeal request. The defendant does not have an appeal regarding the deed cancellation and registration case. In this case, since the appeal request of the plaintiff woman regarding the request for cancellation and registration of the title deed through participation cannot be examined, it was necessary to decide to reject the appeal request regarding this aspect.
2-) As for the examination of the appellate objections of the plaintiff and the defendant regarding the contribution receivable;
a) According to the writings in the file, the evidence on which the decision is based and the reasons in accordance with the law, and especially since there is no mistake in the appreciation of the evidence, all of the plaintiff’s and the defendant’s appeals other than the scope of the following paragraph are unwarranted.
b) Since the lawsuit is related to the contribution share receivable related to the immovables acquired during the period of separation of property regime, it was not correct to decide to charge interest on the total amount of 31.611,00 TL as of the date of the lawsuit, while interest should be charged from 10.04.2008, the date of the lawsuit, for the amount of 5.000 TL requested in the lawsuit petition, and from 01.12.2014, the date of the amendment, for the amount of 26.611,00 TL. The appellate objections of the defendant regarding the interest are appropriate for the reason explained, and although the judgment should be reversed in terms of the part of the judgment regarding the interest, since this issue does not require a retrial, it was necessary to decide to approve this part of the judgment by correcting it.(Art. 438/7 of the Code of Civil Procedure)
Conclusion: For the reason stated in subparagraph 2/b above, the words “31.611,00 TL to be collected from the defendant … and given to the plaintiff together with legal interest from the date of the lawsuit” in subparagraph 2 of the judgment paragraph of the reasoned decision should be removed from the judgment, and the words “31.611,00 TL total contribution receivable should be collected from the defendant … and given to the plaintiff, and legal interest should be charged for 5.000 TL of this amount from 10.04.2008 and for 26.611,00 TL from 01.12. 2014 amendment date for TL 26.611.00”, this part of the judgment shall be amended and the other parts subject to appeal shall be APPROVED for the reason explained in subparagraph 2/a above, the plaintiff’s appeal for the cancellation and registration of the title deed shall be REJECTED for the reason shown in subparagraph 1 above, the fee written below shall be charged to Y. It was unanimously decided that the following fee shall be charged to Y., the advance fee shall be deducted and since the 143.50 TL. appeal application fee was taken in advance, there is no need to charge any other fee, the appeal shall be returned to A. who deposited the advance fee, the way of decision correction shall be open within 15 days from the notification of this decision. 28.06.2016
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