Deed Cancellation And Registration Case
T.C. JUDICIARY
1st Civil Chamber
Main: 2014/11142
Decision 2016/7262
Date of Decision: 14.06.2016
DEED CANCELLATION AND REGISTRATION CASE – THE PROVISIONS OF SHARED OWNERSHIP SHALL BE APPLIED IN DISPUTES BETWEEN THE HEIRS AND IT IS NECESSARY TO FILE A LAWSUIT WITH A REQUEST IN PROPORTION TO THE SHARE – THE IMPROPERNESS OF THE JUDGMENT WITHOUT EXAMINING THE MERITS OF THE CASE – THE JUDGMENT IS REVERSED
SUMMARY: The court decided to dismiss the case on the grounds that the lawsuit filed with the request for cancellation-registration in proportion to the share cannot be heard in terms of the legal reason of “incapacity”, which should be examined first among the requests put forward. However, since the shared ownership provisions stipulated in Article 688 and the following articles of the Law No. 4721 will be applied in the disputes between the heirs, it is possible to file a lawsuit with a request in proportion to the share. Instead of examining the merits of the matter and making a decision according to the result, it is not correct to establish a written judgment.
(6098 S. Code Art. 19, 36) (4721 S. Code Art. 688)
Case and Decision: At the end of the deed cancellation and registration case between the parties, the decision of the local court regarding the dismissal of the case was appealed by the plaintiffs within the legal period with a request for hearing, and the hearing was started on Tuesday, 14.06. 2016 Tuesday, the hearing was started, the hearing was started, after it was decided to accept the petition of appeal, which was understood that it was given and registered in due time, the verbal explanations of the attorneys were listened to, the hearing was declared to be over, and the matter was left to the decision. Subsequently, the report prepared by the Examining Judge … was read and his opinion was taken. The file was examined and the necessity was discussed and considered:
The lawsuit is related to the request for cancellation-recognition of the title deed in the proportion of shares filed based on the legal grounds of “legal incompetence”, “fraud” and “muris collusion”.
The court decided to dismiss the lawsuit on the grounds that the lawsuit filed with the request for cancellation-recognition in proportion to shares cannot be heard in terms of the legal ground of “incompetence”, which should be examined first among the requests put forward.
However, since the shared ownership provisions stipulated in Article 688 and the following articles of the Turkish Civil Code No. 4721 will be applied in disputes between the heirs, it is possible to file a lawsuit with a request in proportion to the share.
In the concrete case, both the plaintiffs and the defendant are the heirs of the muris ….
As such, instead of examining the merits of the case and making a decision accordingly, it is not correct to establish a written judgment.
The appeal of the plaintiffs is appropriate for the reasons explained. It was unanimously decided on 14.06.2016 that the judgment be reversed pursuant to Article 428 of the Code of Civil Procedure No. 1086 (with reference to the provisional Article 3 of the Law No. 6100), and that the attorney’s fee of 1.350.00 TL be charged to the appellant, and that the advance fee be returned to the appellant in accordance with the Attorney’s Fee Tariff that entered into force on 21.12.2015. (¤¤)
Synergy Legislation and Case Law Program