Land Registry Cancellation And Registration Case – Cheating – Termination Of Personality Upon Death
T.C. JUDICIARY
1st Civil Chamber
Main: 2013/18129
Decision: 2014/4907
Date of Decision: 05.03.2014
DEED CANCELLATION AND REGISTRATION LAWSUIT – FRAUD – PERSONALITY ENDS WITH DEATH – THE NECESSITY OF REGISTRATION OF THE IMMOVABLE PROPERTY IN THE NAME OF THE PLAINTIFF’S HEIRS IN PROPORTION TO THEIR SHARES IN THE CERTIFICATE OF INHERITANCE
SUMMARY: Considering that the personality ends with death, the immovable property should be registered in the name of the plaintiff’s heirs in proportion to their shares in the certificate of inheritance.
(4721 S. Code Art. 28) (818 S. Code Art. 28) (6098 S. Code Art. 36)
Case: In the case between the parties;
The plaintiff, who was born in 1933, was elderly and in need of care, claimed that he wanted to assign his immovable properties numbered 190 block 5, 192 block 8, 198 block 2, 199 block 1, 5 and 7 parcels to the defendant, who was his neighbor, with a contract of maintenance until death, but that the transaction was realized as a sale with the defendant’s fraud in the land registry, that no price was paid, and that the defendant took care of him for a while and then did not take care of him, and asked for the cancellation of the title deed and registration in his name; since he died during the trial, one of his heirs Ü. represented himself by an attorney; the other heir Ö. waived the lawsuit; and a representative was appointed to the estate in accordance with the interim decision of the court.
The defendant stated that the sale was real and defended the dismissal of the lawsuit.
The court decided to accept the lawsuit on the grounds that the claim was fixed.
The decision was appealed by the defendant’s attorney in due time and the report of the Examining Judge Barış Bülbül was read. His opinion was received. The file was examined. Necessity was discussed and considered.
Kara: The lawsuit is related to the request for cancellation and registration of the title deed based on the legal ground of fraud.
The court decided to accept the lawsuit.
There is no inconsistency in the acceptance of the lawsuit by determining that the assignment transaction regarding the immovables subject to the lawsuit was carried out by fraud with the file content and the evidence collected. The objections of the defendant’s attorney regarding this aspect are not relevant, and are dismissed.
Conclusion However, although it is not correct that a registration decision has been made about the dead person without taking into consideration that the personality ends with death in accordance with Article 28 of the TMK, since this issue does not require a retrial, the phrase “… to register and register these immovable properties separately in the name of H. A., born on 10.04.1933, son of A., by returning them to the estate of the muris H. A.” in paragraph 2 of the judgment should be removed from the judgment and replaced with the phrase “The plaintiff H. A.’s heirs in proportion to their shares in the certificate of inheritance”, and the appeals of the defendant’s attorney regarding this aspect should be accepted and the judgment should be affirmed as amended in accordance with Article 438/7 of the Code of Civil Procedure No. 1086 through the provisional Article 3 of the CCP No. 6100, and the advance fee should be returned to the appellant, and it was unanimously decided on 05.03.2014.