Forfeiture Of The Inheritance – Decision Of The Court Of Cassation
T.C
JUDICIARY
14TH CIVIL COURT
2015/2918
2016/4100
DECISION DATE.05.04.2016
COURT : Civil Court of First Instance
At the end of the hearing held upon the request for forfeiture of the inheritance with the petitions filed against the defendants on 19.03.2013, 21.10.2013 and 28.01.2014 by the attorney of the plaintiffs; the Court of Cassation examination of the judgment dated 15.04.2014 on the lack of jurisdiction of the court was requested by the attorney of the plaintiffs and after it was decided to accept the petition of appeal, which was understood to be in due time, the file and all the papers contained therein were examined and considered accordingly:
DECISION
The lawsuit is related to the request for forfeiture of the inheritance filed pursuant to Article 605/2 of the TMK.
The attorney for the plaintiffs filed a lawsuit against the heirs of the plaintiffs’ murisi … due to the debts ….. The plaintiffs’ attorneys stated that the execution proceedings were initiated with the file numbered 2013/1822 Esas of the Execution Directorate, that the estate of the deceased was insolvent, that they rejected the inheritance and requested a decision to determine and register these declarations.
The attorney of Yapı Kredi Bank, one of the defendants, defended the dismissal of the lawsuit by stating that the lawsuit was not filed within the prescribed time period, that the plaintiffs’ assets were sufficient to cover the debts of the deceased, and that the assets of the deceased should be examined in terms of collusive transactions and whether there is a value for which the plaintiffs are responsible pursuant to Article 618 of the TMK.
The court ruled for lack of jurisdiction on the grounds that the deceased had debts arising from his capacity as a consumer and therefore the consumer court had the duty to hear the case.
The counsel for the plaintiffs appealed the judgment, arguing that the civil court of first instance has jurisdiction.
Pursuant to the nature of the lawsuit for forfeiture of the inheritance, the inheritance shall be deemed to have been rejected if the insolvency of the deceased is clearly evident or officially determined on the date of death (Art. 605/2 of the TCC). The heirs may always request the determination of the insolvency of the deceased, unless there is a contradiction written in Article 610 of the Turkish Civil Code, that is, unless they have tacitly accepted the inheritance. The period specified in Article 606 of the Turkish Civil Code shall not apply in this case. The lawsuit shall be filed by directing to the creditors. The competent court in this case is the court of the residence of the creditors at the time the lawsuit is filed. In addition, pursuant to Article 39/2 of the Regulation on the Implementation of the Custody, Guardianship and Inheritance Provisions of the TMK, it is mandatory to submit a special power of attorney containing the authority to reject the inheritance.
Law No. 6502 on the Protection of Consumers, which entered into force on 28.05.2014, covers all kinds of consumer transactions and consumer-oriented practices.
In a lawsuit, the explanation of the facts belongs to the parties and the legal characterization belongs to the judge (Art. 33 of the CCP). According to the content of the petition, the lawsuit is related to the request for the determination of the insolvency of the deceased on the date of death (Art. 605/2 of the Civil Code). The dispute is a lawsuit arising from the heirship capacity of the plaintiffs. Law No. 6502 on the Protection of Consumers covers only consumer transactions and practices for consumers. In the case at hand, there is no dispute regarding the application of the Law No. 6502, and there is no regulation stipulating that the consumer court has jurisdiction in such disputes.
According to the 23.12.1942 dated and 24/29 numbered Court of Cassation Unification of Jurisprudence Decision, the competent court in the case of forfeiture of inheritance is determined according to the amount of debt. The Code of Civil Procedure No. 6100, which entered into force before the date of filing of the lawsuit, abolished the measure of the value and amount of the subject matter of the lawsuit in determining and determining whether the court of first instance and the court of peace has jurisdiction, and it is ruled that the court of first instance is the court of first instance in cases related to property rights, regardless of the value and amount of the subject matter of the lawsuit, unless there is a contrary regulation (Art. 2/1 of the CCP).
Since there is no contrary provision in the law, the civil court of first instance shall have jurisdiction in the lawsuits regarding the determination of insolvency of the inheritance. The duty is related to public order and must be taken into consideration by the court at every stage of the proceedings.
The court’s decision to dismiss the case on the grounds that the consumer court has jurisdiction was not deemed correct, and for this reason, the judgment had to be reversed.
CONCLUSION: For the reasons explained above, it was unanimously decided on 05.04.2016, with the acceptance of the appeal objections of the plaintiffs’ attorney, that the judgment be reversed, the prepaid fee be returned to the depositor upon request, and the way of decision correction be open within 15 days from the notification of the decision.