Lawsuit For Debt
T.C. JUDICIARY
8th Civil Chamber
Main article: 2014/1952
Decision: 2014/4774
Date of Decision: 20.03.2014
LAWSUIT FOR DEBT – THE PLAINTIFF’S CONTRIBUTION WITH THE MONEY FROM THE SALE OF JEWELRY AND IMMOVABLE PROPERTY INHERITED THROUGH INHERITANCE AND THE DEFENDANT’S ALLEGATIONS THAT THEY CONTRIBUTED WITH THE MONEY FROM THE SALE OF FARM ANIMALS COULD NOT BE PROVED – THE JUDGMENT WAS REVERSED
SUMMARY: From the scope of the file, the claims that the plaintiff contributed with her jewelry and the sales money of the immovable properties inherited through inheritance, and the defendant contributed with his father’s field-animal sales money could not be proven. In this case, the requests and defenses regarding the share of increase in value should not be valued.
(Art. 5, 202, 220, 225, 232, 235, 236, 240, 499, 575, 639, 641, 642, 658) (Art. 170 S. Code 743) (Art. 10 of 4722 S. Code) (Art. 146 of 6098 S. Code) (Art. 125 of 818 S. Code)
Case: The review of the judgment dated 11.12.2012 and numbered 1431/1209 rendered by Bursa 1st Family Court regarding the acceptance of the debt lawsuit between Ş. Y. and S. Y. was requested by the plaintiff’s attorney and the defendant’s attorney in due time; the file was examined and considered accordingly:
Decision: The plaintiff’s attorney, explaining that the plaintiff contributed to the purchase of the 903 block 29 parcel of land and the building built on it, which was acquired within the marriage union and registered in the name of the defendant spouse, and the 16 JH 461 license plate vehicle, which was registered in the name of the third person in trust, although the price was paid by the parties, due to the income of the representative in return for his work, his jewelery and the monetization of the inheritance share inherited from his father, and requested a decision to pay the plaintiff by collecting the contribution share, participation receivable and value increase share receivable of 85.000 TL from the defendant with interest, without reserving the excess rights.
The defendant defended the dismissal of the lawsuit by stating that the building in dispute was built with his own savings, and that although he had a regular job, he earned income by doing additional work outside of working hours.
The court decided to take the contribution and participation share receivable of 85.000 TL from the defendant and give it to the plaintiff, without prejudice to the plaintiff’s request for more; the judgment was appealed by the plaintiff’s attorney and the defendant’s attorney.
The parties were married in 1987 and the marriage union ended with the acceptance of the divorce case filed on 21.09.2010 and finalized on 25.02.2013. The parcel of 903 block 29, which is registered as land subject to the lawsuit and on which there is a 4-storey building, was registered to the title deed in the name of the defendant on 27.05.1997 through sale. The 16 JH 461 plate vehicle subject to dispute was registered in the name of H. G. on 04.11.2004 and sold to a third party on 06.10.2008.
According to Article 179 of the TMK, in the liquidation of the property regime, the provisions regarding the regime to which the spouses are bound are applied. Since it is not claimed that another property regime was chosen between the parties, from the date of marriage until 01.01.2002, “separation of property” regime is valid in accordance with Article 170 of the Civil Code No. 743, and from this date until the date of filing the divorce case where the regime of participation in acquired property between the spouses ended, the legal “participation in acquired property” regime is valid in accordance with Article 202 of the Civil Code No. 4721.
The property regime between the spouses ended as of the date the divorce case was filed according to Article 225/2 of the TCC. The plaintiff party requested for the participation receivable by stating that although the 2005 model vehicle subject to the dispute was registered in the name of the defendant H. G. on 04.11.2004, the price of the vehicle was paid by redeeming the previous vehicles and the remaining part was paid by taking a loan, the said person appeared to be the owner of the registration due to the possibility of discounted purchase, the vehicle was sold to the third party by H. with the knowledge of the defendant during the de facto separation period, and the sales money remained in the possession of the defendant. The defendant declared that he paid the vehicle price personally. Although the disputed vehicle is registered in the name of the third party, it is not a matter of dispute that the registration is formal and the price was paid within the marriage union. During the period when the regime of participation in acquired property was valid; according to the provision of paragraph 222/3 of the TMK, all the property acquired by a spouse within the marriage union is considered as acquired property until proven otherwise. Despite the presumption of acquired property in the aforementioned article, the spouse who claims that this property is not acquired property but personal property or that it is contributed from the personal property group is obliged to prove this. In the concrete case, according to the scope of the file, witness statements and the lack of proof to the contrary, the disputed vehicle should be accepted as acquired property. However, it is understood from the petition of the defendant’s attorney dated 14.02.2011 that the subject vehicle was sold on 06.10.2008 and the sales money was spent by the defendant. Pursuant to Articles 229/2 and 235/2 of the TMK, the court should determine the value of the disputed vehicle on the date of transfer and calculate the plaintiff’s participation receivable, but it is not correct to make a judgment based on the expert report, which cannot be checked on which date the value of the vehicle was taken as the basis.
As for the objections to the appeal in terms of the immovable property subject to the lawsuit; it was determined that the disputed immovable property was purchased during the period when the separation of property regime was valid between the spouses, and the building on it was partially constructed during the period when the separation of property regime was valid between the spouses and partially after 01.01.2002. Since the separation of property regime is valid between the parties as of the date of the purchase of the land and the construction of some of the construction, the dispute regarding this period will be resolved by taking into account the general provisions of the Code of Obligations. Accordingly, if it is proved that the spouses contributed to the acquisition of each other’s assets, the right to receivables arises in proportion to the contribution. In the period before 01.01.2002, when the CC No. 743 was in force and the legal separation of property was valid between the spouses, in order for the husband and wife to claim compensation from the other for the contribution, they must have contributed by putting a monetary or material value that can be measured in money. In the concrete case, when the scope of the file and the work documents are examined, it should be accepted that the plaintiff has contributed since it is determined that he also worked. In the expert report taken as a basis for the judgment, it was reported that 50% contribution rate was appropriate for the plaintiff due to the documented incomes among the file and the defendant’s maintenance obligation pursuant to Article 152 of the Civil Code. Although the court did not obtain the plaintiff’s income information for some years and did not take into account in the contribution rate, since the plaintiff did not have an open appeal regarding this aspect, this issue was not made a reason for reversal.
It is fixed that some of the constructions on the contested immovable property were made after 01.01.2002 within the marriage union. The related part of the lawsuit is related to the participation receivable. On the assets acquired in the name of one of the spouses after 01.01.2002 within the marriage, the other spouse has the possibility to request a contribution claim at the rate of half of the residual value arising from the law (Article 231, 236/1 of the TMK). Pursuant to Article 222 of the TCC, the person who claims that a certain property belongs to one of the spouses is obliged to prove his/her claim. All property of a spouse should be considered as acquired property until proven otherwise. In terms of the contribution claim, it does not matter whether the requesting spouse works or not, or whether he/she makes any contribution or not. The claim for contribution arises from the law. In such cases, it is necessary to calculate the contribution claim over half of the residual value (Art. 231 of the TCC) remaining after subtracting the debts related to the property (Art. 231 of the TCC) from the total value of the acquired property (Art. 219 of the TCC), including the amounts obtained from the values to be added (Art. 229 of the TCC) and the amounts obtained from equalization (Art. 230 of the TCC) (Art. 236/1 of the TCC), and in accordance with the provisions of Article 227 of the TCC. Pursuant to the provisions of Article 227 of the TCC; if one of the spouses has contributed to the acquisition, improvement or protection of the property belonging to the other with his/her personal property or income without receiving any or appropriate compensation, the value increase share receivable should be determined in proportion to his/her contribution for the increase in value that arises in this property during the liquidation. From the scope of the file, the claims that the plaintiff contributed with her jewelry and the sales money of the immovables inherited through inheritance, and that the defendant contributed with his father’s field and livestock sales money could not be proven. In this case, the requests and defenses regarding the share of increase in value should not be valued.
The work to be done by the court; first of all, to explain how much of the plaintiff’s claim is related to the contribution receivable and how much of the claim is related to the participation receivable; Bursa 6. Family Court’s file numbered 2013/ 33 Esas, then, taking into account the above-mentioned issues and obtaining a report from the expert expert when necessary, determining the claimant’s contribution claim in terms of the parts built on the disputed vehicle and immovable property after 01.01.2002; the ground value of the land on which the building was built and the ground value of the land on which the building was built and the construction made before 01.01.2002. 01.01.2002, the determination of the contribution receivable based on the contribution rate excluded from the reversal, taking into account that the plaintiff has requested interest, considering that interest should be charged from the date of the lawsuit on the receivable to be ruled on the contribution receivable and from the date of the judgment on the receivable subject to the participation receivable, specifying the receivables to be ruled on the contribution and participation receivables separately in the judgment and making a judgment accordingly.
According to the acceptance; although it is not correct to make a decision without waiting for the finalization of the divorce case, this issue has not been made a reason for reversal due to the determination that it was finalized after the date of the judgment.
For the reasons explained above, with the acceptance of the appellate objections of the plaintiff’s attorney and the defendant’s attorney, the judgment, which does not comply with the provisions of the procedure and the law, is reversed in accordance with Article 428 of the Code of Civil Procedure No. 1086 with the reference to the provisional Article 3 of the Code of Civil Procedure No. 6100 in terms of the receivable determined regarding the immovable, and again, with the reference to the provisional Article 3 of the Code of Civil Procedure No. 6100. In accordance with Article 388/4 (Art. 297/ç) of the Code of Civil Procedure and Article 440/I of the Code of Civil Procedure, it is decided unanimously on 20.03.2014 that the request for correction of the decision can be made within 15 days as of the notification of the Supreme Court of Appeals Chamber decision and the advance fee of TL 24,30 shall be refunded to the plaintiff upon request.