Court Of Cassation Decision On Deed Cancellation
Republic of Turkey Judiciary Court 1st Civil Chamber Esas: 2016/ 15630 Decision: 2020 / 798 Date of Decision: 12.02.2020
JUDICIARY DECISION
COURT OF FIRST INSTANCE
TYPE OF CASE :
CANCELLATION AND REGISTRATION
In the case between the parties;
The plaintiff claimed that their joint heirs … registered the immovables numbered 101 block 13, 116 block 116, 127 and 148 parcels in the name of the defendant’s son during the cadastral determination, but the transaction was for the purpose of evading property from the heirs and was collusive, and requested the cancellation of the deeds and their registration in his name in proportion to his inheritance share; in addition, with the will of the heir dated 09.03. 2011, the deceased willed the entire immovable property numbered 116 block 139 parcel, 1/3 of his share in the immovable properties numbered 101 block 19, 102 block 30, 116 block 133 and 140 parcels to his grandson (the child of the defendant …), the other defendant …, and 1/3 of his share to the other heirs, himself, the defendant … and the non-suiting … and …, claiming that his reserved share was damaged, and made a request for equalization against the defendant ……
The defendant … stated that the heir had other immovable properties and the defendant … stated that the plaintiff’s reserved share was not damaged and defended the rejection of the lawsuit.
The decision of the court regarding the separation of the case for the defendant … due to the difference in the subject matter of the lawsuit and the immovables, and the decision regarding the acceptance of the lawsuit for the defendant … on the grounds that the fact of collusion was fixed, was decided by the Chamber as follows: “As for the concrete case; the Unification of Beliefs Decision dated 01.04.1974 and numbered 1/2 does not have a place of application in terms of the immovables numbered 101 block 13 parcel, which was determined without a deed, and 116 block 116, 127 and 148 parcels, which were assigned in the form of donation, and
It is clear that the claim regarding the collusion of the heir cannot be heard, and if the conditions are present, it can be subject to the equalization lawsuit stipulated in Articles 560 to 571 of the TMK No. 4721. However, there is no request for equalization in the case. As such, while it should be decided to dismiss the lawsuit for annulment and registration based on the legal reason of the collusion of the heir, it is not correct to establish a written judgment with an erroneous evaluation.”, and the court decided to dismiss the lawsuit as a result of the trial conducted in accordance with the reversal.
The decision was appealed by the plaintiff in due time and the report of the Examining Judge … was read and his opinion was taken. The file was examined, and the necessity was discussed and considered.
-DECISION-
In the reversal decision, which was complied with, a decision was made by taking the action as shown. It was unanimously decided on 12/02/2020 that the plaintiff’s appeal objection, which was not found to be appropriate, was rejected and the judgment, which was in accordance with the procedure and law and the grounds of the reversal decision, was APPROVED, and that the remaining approval fee of 25.20 TL written below was to be collected from the appellant, on 12/02/2020.
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