Decision On Value Increase Share Claim
T.C. JUDICIARY
8th Civil Chamber
Main: 2014/2640
Decision: 2014/11919
Date of Decision: 10.06.2014
LAWSUIT FOR INCREASE IN VALUE – INTEREST SHOULD BE AWARDED IN THE LAWSUIT VALID FROM THE DATE OF THE DECISION – INAPPROPRIATENESS OF THE DECISION TO CHARGE LEGAL INTEREST FROM THE DATE OF THE LAWSUIT AND THE DATE OF AMENDMENT AGAINST THE DEFENDANT
SUMMARY: The lawsuit is related to the request for participation receivable and in such cases, interest should be awarded as of the date of the decision in accordance with the legal article. It was also not deemed correct that the court decided to charge legal interest from the date of the lawsuit and amendment by adding the participation claim and the claim arising from the right of inheritance together, to the detriment of the defendant.
(Art. 5, 202, 220, 225, 225, 232, 235, 235, 236, 240, 499, 575, 639, 641, 642, 658) (Art. 170 of S. 4721) (Art. 10 of S. 4722) (Art. 146 of S. 6098) (Art. 125 of S. 818)
Case: The review of the judgment dated 08.10.2013 and numbered 1460/1283 rendered by Ankara 7th Family Court dated 08.10.2013 and numbered 1460/1283 regarding the partial acceptance and partial rejection of the lawsuit between M. A. T. and M. E. T. regarding the claim for share of increase in value and participation claim was requested by the plaintiff’s attorney and the defendant’s attorney. The file was examined and it was understood that the matter was subject to a hearing and a call sheet was sent to the parties by appointing Tuesday, 10.06.2014 for the hearing. On the day of the hearing, Attorney E. Ö. for the appellant and Attorney A. E. for the plaintiff appeared. After the hearing was started and it was understood that the request for appeal was within the time limit and the verbal explanations of those present were heard, the hearing was terminated; the file was examined and the necessity was considered:
Decision: The plaintiff’s attorney stated that his client and the deceased G. got married in 1988, his wife died in 2006, he purchased the independent section numbered 12 on the parcel numbered 26183, block 10, which was purchased within the marriage union, the attorney contributed to the purchase of the immovable to a great extent, the immovable was acquired property and was used as a family residence, and he claimed the claim for the share of increase in value pursuant to Article 240 of the TMK. Pursuant to Article 240 of the TMK, he requested a decision to grant him the right of ownership on the family residence in question and the registration of the right of ownership to the title deed and the defendant’s inheritance share is 114.385,00 TL and to be deposited, and increased the amount of the claim to 190.625 TL in the amendment petition dated 29.04.2013, for which he paid the fees.
The defendant’s attorney defended the dismissal of the lawsuit by claiming that the lawsuit was filed inappropriately, that the plaintiff had no contribution in the purchase of the immovable property subject to the lawsuit, that the deceased G. was one of the rich families of Adana, that the immovable property was purchased with the money that fell to the share of the inheritance when his father passed away, and that the plaintiff had no justifiable reason for the plaintiff to request specificity.
The court partially accepted the lawsuit, the plaintiff’s participation claim and the claim from the inheritance as a total of 123.040,81 TL, 10.000,00 TL of the remaining part from the date of the lawsuit to be taken from the defendant together with legal interest from the date of amendment, since the plaintiff demanded the ownership of the house by paying a consideration in return for the right of inheritance and participation claim, the defendant’s right of inheritance and participation claim is 244. 346,84 TL and it is accepted that 30.335,34 TL for the improvement of the house is covered from this money, and the total amount of 274.682,18 TL is deducted from the plaintiff’s inheritance and participation claim, and when 151.641,37 TL is paid to the defendant by the plaintiff together with the legal interest to be accrued from the date of the decision, it is decided to register the immovable property in the name of the plaintiff; the judgment was appealed by the defendant’s attorney.
The plaintiff and the deceased G. were married on 10.04.1988 and the spouse G. died on 12.11.2006. The property regime between the spouses ended on the date of G.’s death in accordance with Article 225/last of the TCC. Since the spouses did not claim that they have chosen another property regime, the regime of separation of property between the spouses in accordance with Article 170 of the TCC No. 743 from the date of marriage until 01.01.2002 when the TCC No. 4721 entered into force, and the regime of participation in acquired property in accordance with Article 202 of the TCC in accordance with Article 10 of the Law No. 4722 from 01.01.2002 until the date of the death of the spouse is valid. The subject of the lawsuit, block 26183, parcel 10, section 12, was determined in the name of G. T. through sale on 06.04.2004 and transferred to the name of his heirs on 23.12.2006.
The lawsuit is related to the claim for contribution arising from the residual value due to the liquidation of the testamentary property regime. Based on the scope of the file, the content of the case documents and the trial minutes, the court has decided by evaluating the evidence and there is no inconsistency in the decision, it is stipulated that the 10-year statute of limitations in Article 125 of the Code of Obligations No. 818 (Article 146 of the Code of Obligations No. 6098) shall be applied in such cases through Article 5 of the TMK, the 65.000 TL inherited to the deceased G. by inheritance from his father was considered as the personal property of the deceased in accordance with Article 220/2 of the TMK and taken into consideration in the calculation made by the expert. According to Article 220/2 of the TCC, 65.000 TL, which the deceased G. inherited from his father, was considered as the personal property of the deceased and taken into consideration in the calculation made by the expert, according to Articles 232 and 235/1 of the TCC, the release values of the assets at the time of liquidation should be taken into consideration, according to the established practices of the Court of Cassation, the date of liquidation is accepted as the date of decision, Since the court has determined the claimant’s participation claim on the residual value by deducting the value reached by the contribution made by the deceased with his personal property from the value of the immovable property on the date of release, the other appellate objections of the plaintiff’s attorney and the defendant’s attorney have not been deemed appropriate.
Pursuant to Article 240 of the TCC, the plaintiff’s attorney demanded the ownership of the house by paying an advance payment in return for the representative’s inheritance right and participation claim, and the court decided to register the immovable property in the name of the plaintiff when the plaintiff paid 151.641,37 TL to the defendant together with the legal interest to be accrued from the date of the decision by deducting from the plaintiff’s inheritance and participation claim. As it is seen, the court has conditioned the registration of the immovable property in the name of the plaintiff on the condition of the payment of the specificization fee. The duty of the court is to resolve the dispute between the parties and to resolve the disputes. However, with the decision rendered, the dispute between the parties has not been resolved, and the claim specificity decision has been made subject to conditions. In such a case, there will be hesitation in the execution of the judgment.
The differences between the participation claim and the rights arising from the inheritance can be roughly listed as follows; in terms of participation claim; 1-Participation claim is a relative receivable right in the nature of a personal right.
2-Participation receivable arises from the law, 3-The liquidation of the regime of participation in acquired property that ends with death emerges as a prerequisite for the sharing of the deceased spouse’s estate, 4-Participation receivable is among the debts of the estate that must be paid first and in advance, 5-Participation receivable is the debt of the heir, 6-With the death of the heir, the title of being a debtor passes to the heirs and the heirs are jointly and severally liable for the debts according to Article 641 of the TMK. According to Article 641 of the TCC, the heirs are jointly and severally liable for the debts, 7-The plaintiff right spouse is both the creditor of the estate due to the participation receivable and the debtor of the estate as an heir due to the estate debt. Therefore, the title of creditor and debtor are united in the plaintiff right spouse, 8-The creditor of the participation receivable is responsible for the debts of the estate in proportion to his/her inheritance share, 9-The right spouse has the right to reject the insolvent inheritance (estate) after receiving the participation receivable, 10-The release values of the acquired properties are taken as basis for the calculation at the time of liquidation, that is, at the date closest to the date of decision (Art. 235 of the Civil Code). /1), for this reason, depending on the process of the case, a long period of time may have elapsed between the date of death and the date of the decision (3-5 years, or even more), 11-The contribution receivable received by the right spouse is the equivalent of the deceased’s contribution to the property acquired during the marriage, 12-The competent and authorized court in the liquidation of the property regime is the Family Court, 13-The rate of contribution receivable is ½ (half) as per the law and is determined as a fixed rate (TMK.236/1), 14-The goods subject to the liquidation of the regime of participation in acquired property are, as a rule, acquired goods. In terms of inheritance (inheritance) rights; 1-The right arising from the inheritance is not a relative right of receivable in the nature of a personal right, but a real right arising from the inheritance law, i.e. a share in kind. 2-The heirs are jointly and severally liable for the debts of the estate (TMK.art.641/1), 3-The goods subject to the liquidation of the estate are both the personal property and the acquired property of the deceased. 4- In order to find the net amount of the estate (net estate), it is necessary to first subtract the contribution receivable of the surviving spouse in the liquidation. Thus, before the share to be deducted from the liquidation of the estate, the spouse will have the share to be deducted from the liquidation of the property regime. 5- The inheritance is opened with the death of the inheritor. Inheritance-related acquisitions and allocations made by the heir during his/her lifetime shall be evaluated according to the state of the estate at the time of death (Article 575 of the Civil Code), i.e. the release value of all personal and acquired property in the estate shall be determined according to the state of the estate at the time of death, 6- The inheritance right of the creditor of the participation receivable is a provision received by him/her due to being the heir of the deceased, 7- The competent and authorized court in all cases related to the liquidation of the estate is the Civil Court of Peace in the place of residence of the heir (Article 658 of the Civil Code). 8- The legal inheritance share of the surviving spouse is 1/4 with the first clan, 1/2 with the second clan, 3/4 with the third clan and the whole if there are no heirs left (TMK.art.499 9- Even if the surviving spouse’s status of heirship has ended (such as waiver of inheritance, refusal of inheritance, disinheritance, disinheritance, deprivation of inheritance), he/she may request the participation receivable arising from the legal property regime liquidation from the heirs, waiver of inheritance and refusal of inheritance does not mean waiver in terms of participation receivable, 10- There is no time limit in the law for the sharing of the inheritance. According to Article 642 of the TCC, each of the heirs may request the division of the inheritance at any time, unless they are obliged to maintain the partnership according to the contract or the law (Article 639 of the TCC, the statute of limitations for the claim of appropriation is in question). As mentioned, due to the differences explained, the liquidation of the participation regime and the liquidation of the inheritance cannot be carried out together. If both rights, which are subject to different liquidation rules, are liquidated at the same time and together, it may be possible to encounter unforeseen and unpredictable problems or consequences in the future. Whether or not there is a request in this regard does not affect the result. There is no dispute that the participation receivable is a debt of the estate. However, this receivable right is a receivable right that must be paid first from the estate. The claimant is not only a creditor of the estate, but also a debtor of the estate pursuant to Article 641 of the TCC just explained. In other words, in the concrete case, the title of creditor and debtor are combined in the plaintiff.
Considering all these, it is very difficult to foresee the inconveniences and insolvencies that may arise from the liquidation of the participation claim and the estate together. In this respect, deducting the inheritance share of the surviving plaintiff spouse from the claim for contribution, with or without a request, would be contrary to the principles governing the claim for contribution and the principles governing the inheritance law. In this case, first of all, the claimant’s contribution claim should be paid from the estate as the primary debt of the estate, and then the heirs should share the remaining net estate among them in proportion to their inheritance shares. The plaintiff’s debt to the estate should only be taken into consideration during the liquidation of the estate and the remaining inheritance share, if any, should be paid to him after the debt to the estate is deducted from his inheritance share. On the other hand, it is also possible for the heirs to collect their receivables by filing a recourse action against each other. In the face of this situation, it is not possible to carry out the liquidation of the participation receivable and the liquidation of the estate together.
In that case; Since the plaintiff’s participation receivable and the defendant’s receivable arising from the inheritance on the immovable and which is the basis for the assignment have been duly determined, it is necessary to give the plaintiff party the time and opportunity to deposit the defendant’s receivable arising from the assignment to the court cashier within an appropriate period to be determined by the court, and to make a decision on the assignment after the plaintiff deposits this amount to the court cashier, but without considering these aspects, it is contrary to the procedure and the law to decide only to register the immovable in the name of the plaintiff without making a cancellation decision depending on the payment condition as written.
Apart from this; the lawsuit is related to the claim for participation claim and in such cases, interest should be awarded as of the date of the decision in accordance with Article 239/2 of the TMK. It was also not deemed correct for the court to have decided to charge legal interest from the date of the lawsuit and amendment by adding the participation claim and the claim arising from the right of inheritance against the defendant.
Since the appellate objections of the plaintiff’s attorney and the defendant’s attorney are deemed appropriate for the reasons explained above, it is accepted and the judgment is reversed in accordance with the Provisional Article 3 of the CCP and Article 428 of the Code of Civil Procedure, and considering the requirements of reversal, there is no need for an attorney fee in favor of the parties represented by a lawyer at the Supreme Court of Appeals hearing, Article 388/4 of the Code of Civil Procedure (Article 297 of the CCP) /ç) and 440/I. articles, it was unanimously decided on 10.06.2014 to refund the 2.101,00 TL advance fee to the appellant defendant upon request and to refund the 2.102,00 TL advance fee to the appellant plaintiff upon request.