Failure To Prove Donation – Acceptance Of The Land As The Defendant’s Personal Property
Supreme Court of Appeals of the Republic of Turkey
8th Civil Chamber Case No.: 2015/11101
Decision No.: 2017/2353
Date of Decision: 23.02.2017
LIQUIDATION OF THE PROPERTY REGIME AND CLAIM FOR DEBT – PRESUMPTION OF DONATION
NOT PROVEN BY THE PLAINTIFF – THE TRANSFER OF THE LAND
BEING A DONATION, IT IS THE DEFENDANT’S PERSONAL PROPERTY
SHOULD BE TAKEN INTO ACCOUNT
SUMMARY: Since the plaintiff failed to prove the contrary of the presumption of donation, the fact that the transfer of this land
constitutes a donation and that the land is the defendant’s personal property should be taken into account in the calculation
. While the court should have ruled based on the value of the remaining improvements after deducting the land value,
including the land value in the calculation and ruling was incorrect,
therefore the decision must be overturned.
Following the trial in the case between the parties as described above, the court
the case was accepted, and upon the defendant’s appeal of the decision, the Chamber
reviewed the file and considered the matter.
The plaintiff’s attorney requested the liquidation of the property regime and the payment of the debt
due to the immovable property specified in the complaint.
The defendant defended the dismissal of the case.
The Court ruled to accept the plaintiff’s claim and ordered the defendant to pay the calculated participation claim of 25,665.00 TL
for the real property in question, along with legal interest starting from the date of the decision.
; the judgment was appealed by the defendant’s counsel.
1- Based on the contents of the file, the case documents, and the trial minutes, the existing evidence
was evaluated by the court, and no inaccuracies were found in the evaluation; therefore, the defendant’s
counsel’s appeals outside the scope of the following clause are deemed unfounded.
2- It is the parties’ responsibility to present the factual circumstances, while the legal characterization and determination of the applicable legal provisions
are the responsibility of the judge (Article 33 of the Civil Procedure Code No. 6100). Based on the manner in which the claim was presented, the case
pertains to a claim for participation in the surplus value.
Regarding the specific case; the spouses married on November 23, 1989, and were divorced with the finalization of the judgment granting the divorce
was finalized with the acceptance of the divorce case. The property regime ended as of the date the divorce case was filed
(Turkish Civil Code, Article 225/final). Since it was not claimed that another property regime was chosen by contract,
the separation of property regime applied from the date of marriage until January 1, 2002, when the Turkish Civil Code No. 4721 came into effect
(Turkish Civil Code No. 743, Article 170), and from that date until the termination of the property regime, the regime of participation in acquired property applies (Law No. 4722, Article 10, Turkish Civil Code, Article 202/1). The real estate property in question, parcel No. 132, plot No. 1, was purchased on July 12, 2006, when the regime of participation in acquired property was in effect, and was registered in the name of the defendant spouse.
purchased on July 12, 2006, when the regime of participation in acquired property was in effect, and was registered in the name of the defendant spouse.
In the liquidation of the property regime, the provisions relating to the regime to which the spouses are subject apply
(Article 179 of the Turkish Civil Code).
From the entire file and the documents examined, it is understood that the land parcel numbered 132/1, which is the subject of the lawsuit,
was transferred to the defendant by his mother on July 12, 2006, by way of a sale.
Based on the defendant’s witness statements, the cadastral record of the property in question, the land registry record, the official deed, the entire
file, and the ordinary course of life, even if the sale is recorded in the land registry, the sale by the mother to the defendant
is a gift. (YİBK dated April 1, 1974, No. 1/2; dated March 27, 1957, No. 123/2) The Supreme Court and
our Chamber accept this view. The burden of proof lies with the party claiming the contrary. (HGK
June 26, 2013, No. 1137/879).
In the present case, since the plaintiff failed to prove the contrary of this presumption of donation, the fact that the transfer of this land
constitutes a donation and that the land is the plaintiff’s personal property should be taken into account in the calculation.
The court should have ruled based on the value of the land after deducting the land price,
, it was incorrect to include the land value in the calculation and render a decision,
therefore the decision must be reversed.
Conclusion: The defendant’s counsel’s appeal objections are accepted for the reasons stated in paragraph (2) above, and the decision is
pursuant to Article 428 of the Code of Civil Procedure No. 1086, as referred to in Article 3 of the Transitional Provisions of the Code of Civil Procedure No. 6100,
and the defendant’s other appeals are rejected for the reasons stated in paragraph (1) above,
, and that the parties may request a correction of the decision within 15 days of the notification of the Court of Cassation’s decision in accordance with Article 440/I of the Code of Civil Procedure,
and that the advance fee shall be refunded to the appellant,
it was decided unanimously on February 23, 2017.