Land Registry Cancellation And Registration Case – Fraud Can Be Proved With Any Evidence
T.C. JUDICIARY
1st Civil Chamber
Basis: 2012/16321
Decision: 2013/3719
Date of Decision: 18.03.2013
DEED CANCELLATION AND REGISTRATION CASE – FRAUD CAN BE PROVED WITH ALL KINDS OF EVIDENCE – THE COURT SHOULD EXAMINE THE CLAIMS AND EVIDENCE OF THE PARTIES IN LINE WITH THE PRINCIPLES EXPLAINED AND MAKE A DECISION – THE JUDGMENT IS REVERSED
SUMMARY: While fraud (deception) can be proved by all kinds of evidence, the exercise of the right of annulment is not subject to any form. It can also be exercised through a statement of will, a defense or a lawsuit to be directed to the other party within the one-year prescriptive period from the date of learning of the fraud (deception). However, the court has not made an examination and evaluation covering the principles and facts explained above. In this case; while the court should examine the claims and evidence of the parties in line with the principles explained and make a decision according to the result, it is not correct to have made a decision with an incorrect evaluation and incomplete examination.
(6098 S. Code Art. 36) (818 S. Code Art. 28)
Case: At the end of the deed cancellation and registration, compensation case between the parties, the decision of the local court regarding the dismissal of the case was appealed by the plaintiff’s attorney within the legal period, the file was examined, the report of the Examining Judge Derya Alaybeyoğlu was read, his explanations were listened to, and the necessity was discussed and considered:
Decision: The lawsuit is related to the requests for cancellation and registration of title deed and compensation.
The court decided to dismiss the lawsuit on the grounds that the lawsuit is based on the legal ground of recourse from the donation, and in the concrete case, the conditions for recourse from the donation described in Article 244 of the Code of Obligations did not occur.
From the file content and the collected evidence, it is understood that the plaintiff assigned his immovable property numbered 3 parcels to the defendant N. on 08.02.2001 and his shares in parcels 21, 243, 317 and 320 to the defendant M. on 27.02.2004.
The plaintiff stated that he was worried about his future due to his advancing age and the death of his wife, that he transferred his immovable property in parcel 3 to his daughter-in-law N. ‘s shares in parcels 21, 243, 317 and 320 to the defendant’s son with the belief that they would take care of him, but in 2009 he fell ill and became in need of care, the defendants put him on the doorstep in these days when he needed it the most, thus he realized that their main purpose was to obtain valuable immovable properties and that he was deceived, and upon learning that the defendants would file a lawsuit, he filed the present lawsuit, claiming that they disposed of some of the immovable properties.
It is clear that the claim is based on the legal ground of fraud (deception) in terms of its content and the manner in which it was put forward. The plaintiff, during the trial, with a petition dated 13.07.2011, stated that his assets were taken away from him by fraud (deception) and explained that he relied on the legal ground of fraud (deception).
As it is known, deception is generally defined as intentionally arousing an erroneous belief in a person in order to induce him to make a declaration of will, especially to conclude a contract, or to preserve or maintain an existing erroneous belief. As explained in Article 36/1 of the Turkish Code of Obligations No. 6098, which entered into force on 01.07.2012 (Article 28/l of the Code of Obligations No. 818), <If one of the parties has concluded a contract as a result of the deception of the other, he is not bound by the contract, even if his mistake is not fundamental.> In the presence of the aforementioned conditions, the deceived party may terminate the legal relationship with retroactive effect (maximally applicable) by exercising his right and may demand back what he has given.
On the other hand, fraud (deception) may be proved by all kinds of evidence and the exercise of the right of rescission is not subject to any form. It may also be exercised through a statement of will, a defense or a lawsuit to be directed to the other party within the one-year prescriptive period from the date of learning of the fraud (deception).
However, the court has not made an examination and evaluation covering the principles and facts explained above.
In this case, while the court should examine the claims and evidence of the parties in line with the principles explained above and make a decision according to the result, it is not correct to have made a decision with an erroneous evaluation and incomplete examination as written.
Conclusion The plaintiff’s appeal objections in this respect are appropriate. It was unanimously decided on 18.03.2013 that the judgment shall be annulled in accordance with Article 428 of the Code of Civil Procedure No. 1086 (with reference to the provisional Article 3 of the Law No. 6100) for the reasons explained, and the advance fee shall be returned to the appellant.