Cancellation Of The Title Deed For Real Property Registered In A Woman’s Name As A Wedding Gift
Republic of Turkey COURT OF CASSATION
8th Civil Chamber Case No. :2016/22021
Decision No. :2017/3112
Date of Decision : March 7, 2017
COURT OF CASSATION DECISION
COURT: Civil Court of First Instance
CASE TYPE: Cancellation of Title Deed, Registration, and Claim
Following the trial in the case described above between the parties, the Court
ruled that it lacked jurisdiction. Upon the appeal of the judgment by the plaintiff’s counsel and the defendant’s counsel,
the Chamber reviewed the file and considered the matter.
D E C I S I O N
The plaintiff’s counsel argued that the defendant purchased the independent unit located at plot …, block …, lot …, which is the subject of the lawsuit,
in the defendant’s name; that the defendant breached the duty of loyalty; and that, pursuant to Article 295/2 of the Turkish Civil Code,
the conditions for rescission of the gift have been met due to the defendant’s breach of the legal obligation arising from the law,
and requested a decision ordering the cancellation of the title deed and its registration in the plaintiff’s name, or, if that is not possible,
the recovery of the property’s value as of the date of the lawsuit from the defendant.
The defendant’s attorney argued for the dismissal of the case.
The court ruled that the property was purchased in the defendant’s name one day after the marriage, that the case
constituted a dispute over marital property, and that the Family Court was competent to hear the case,
thereby issuing a decision of lack of jurisdiction. The judgment was appealed
by both the plaintiff’s attorney and the defendant’s attorney.
Upon reviewing the entire case file, it is evident that the plaintiff’s complaint explicitly states that the defendant violated his legal obligation under Article 295/2 of the Turkish Civil Code
and that the conditions for revocation of the gift have been met, and consequently, the plaintiff sought
cancellation and registration of the title based on the grounds for revocation of the gift, or alternatively,
a claim for payment if that were not possible. It is understood that the plaintiff’s claim is based on general provisions (Turkish Civil Code Art. 285 et seq.)
and does not constitute a claim within the scope of the liquidation of the marital property regime.
Therefore, since the claim does not arise from Book 2 of the Turkish Civil Code, the Family Court lacks jurisdiction,
and the venue for resolving the dispute shall be the Civil Court of First Instance
determined in accordance with Article 2 of the Turkish Code of Civil Procedure No. 6100. Since jurisdiction is a condition of the action related to public order (HMK Art. 114/c),
it must be considered ex officio by the court at every stage of the proceedings,
even if not raised as a claim or defense (HMK Art. 115/1). While the court should have heard the case in the Civil
Court of First Instance under general provisions, the decision to dismiss the case on the grounds that the Family Court has jurisdiction
is contrary to procedure and law, and warrants reversal.
CONCLUSION: The appealed judgment is hereby REVERSED pursuant to Article 428 of the Civil Procedure Code No. 1086, as referred to by Article 3 of the Transitional Provisions of the Civil Procedure Code No. 6100, for the reasons stated above; and pursuant to
440/III-1, 2, 3, and 4 of the Code of Civil Procedure, the avenue for correcting the judgment is closed, and the advance
court fees are to be refunded to the appellant and the respondent; this decision was rendered unanimously on March 7, 2017.