Statute Of Limitations In Lawsuits Filed Due To Inheritance Collusion , Even If There Is No Prescription Period, Abuse Of Right Should Be Accepted In The Lawsuits Filed After A Long Period Of Time Has Passed
Court of Cassation 1st Civil Chamber 2013/21600 Esas, 2014/1631 Karar 30.01.2014 Decision
DEED CANCELLATION AND REGISTRATION DUE TO INHERITANCE COLLUSION
ABUSE OF RIGHT
FILING A LAWSUIT YEARS LATER WHICH IS NOT SUBJECT TO THE STATUTE OF LIMITATIONS AND THE STATUTE OF LIMITATIONS
TURKISH CIVIL CODE (TMK) (4721) Article 2
“Case Law Text”
At the end of the deed cancellation, registration and equalization case between the parties, the decision of the local court regarding the acceptance of the case was appealed by the defendants’ attorneys within the legal period with a request for a hearing, and upon the notification made for Tuesday, 09.07.2013, which was determined as the hearing date, the attorneys for the appellants, Attorney H. Ö. and Attorney R. I.r. for the appellants, the hearing was started, the petition of appeal, which was understood to have been filed and registered in due time, was accepted, the verbal explanations of the attorneys were heard, the hearing was declared to be over, and the matter was left for 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 of the title deed based on the legal reason of muris collusion and registration in proportion to the inheritance share, and if not possible, for equalization.
From the file content and the collected evidence; the immovable immovable parcel numbered 546, one of the immovables subject to the dispute, was registered in the name of H… K… and the cadastral minutes were finalized on 15.03.1982, while the immovable immovable immovable parcel no. 419 was registered in the name of the heir with the title deed no. 60 dated February 1954 and was transferred to his son H. K.. The other contested parcels numbered 59 and 159 were registered in the name of Hamdi during the cadastral determination with the title deed records numbered 71 and 72 dated March 1335 and numbered 71 and 72 dated March 1335 and with the title deed records dated May 1950 and numbered 68 dated May 1950, and half of them were registered in the name of Ö.’s wife Z. with title deed records numbered 68 and 69 and dated May 1950, with title deed records numbered 68 and 69 and dated May 1950, and 6 shares of 24 shares were registered in the name of Ö.’s wife Z. and 18 shares of 3 each were registered in the name of Ö.’s children Pe., F., Z., M., N. and E., and in the external and consensual division of parcels numbered 59 and 159 made by the aforementioned persons, parcels numbered 59 and 159 were registered in the name of Z. and her children Penbe, F., Penbe, F., Z., M., N. and E., Z. died as a widow in 1959 and the aforementioned children remained as heirs, and F., who left the inheritance from the shareholders, acted on his own behalf as principal and N., P., Z. and M. as proxies and sold their shares to H… K… in return for the price with the sales promise contract dated 22.01.1979 and numbered 2008 journal of Silivri Notary Office. K., and ¾ of the shares were determined in the name of H. K. and ¼ of the shares were determined in the name of E., daughter of Ö., and the signature of the heir F. was obtained that he sold these places and consented to the determination, and the cadastral minutes became final on 15.03.1982 without objection, and the stakeholder H. K. bought the ¼ shares belonging to E. in these properties on 31.12.2001 and purchased all of the parcels. 2001 and became the owner of all of the parcels, the root heir F. K., who was born in 1911, died on 06.04.1991, leaving behind as heirs the plaintiff children E. M. N., the plaintiff daughter-in-law C., the wife of his son H., who died on 26.03.2005, his grandchildren H. and C., and the defendant N., the wife of his son H., who died on 07.04.2003, and the other defendants who are his grandchildren.
The plaintiffs filed the present lawsuit claiming that the transfers made by their heir F.K. to the defendant H. K. were collusive and for the purpose of evading property from the heirs.
The court decided to accept the lawsuit on the grounds that the inheritor transferred the disputed immovable properties to his son H., who is the heir of the defendants, in order to evade property from his other children.
However; during the trial, the plaintiff party stated with the petition dated 16.05.2011 that they abandoned their lawsuit with respect to parcel 546, one of the immovables subject to dispute, and although this petition was read in the session dated 22.06.2011, where the defendant’s attorney was present, since the defendant did not object to the abandonment of the lawsuit regarding parcel 546, it is not correct to include the said immovable within the scope of acceptance, while it should be decided that there is no room for a judgment due to abandonment with respect to the said parcel.
As for the other immovables subject to the dispute; the whole of the parcel numbered 419 and ¾ shares of the parcels numbered 59 and 159 were determined in the name of H… K. and the cadastral determinations were finalized on 15.03.1982, and the root inheritor F. K. did not file a lawsuit from 06.04.1991, the date of his death, until 10.02.2010, the date of the lawsuit, and although the statute of limitations and the period of abatement are not in question in the lawsuits filed based on the legal reason of muris collusion; it is clear that filing a lawsuit after so much time has passed is incompatible with the provision of Article 2 of the Turkish Civil Code.
As such; while it should be decided that there is no room for a judgment due to abandonment in respect of parcel 546, and that the lawsuit should be dismissed in respect of the other immovables, it is not correct to have decided as written with an erroneous evaluation.
The objections of the Defendants’ counsel on appeal are appropriate for the reasons stated. It was decided by majority of votes on 30.01.2014 that the judgment shall 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), the advance fee shall be returned to the appellant, and 990.00.-TL for the appellants’ attorney fee shall be collected from the appellees pursuant to Article 14 of the Attorney Fee Tariff which entered into force on 29.12.2012.
-DISSENTING VOTE LETTER-
1)-I agree with the reversal decision of the Chamber with respect to the immovable property numbered 546 parcel.
2)-However, with respect to the immovables parcels numbered 59, 159 and 419, according to the content of the file, the evidence collected, the legal and legal grounds on which the judgment is based, and the fact that there is no error in the evaluation of the evidence, the court’s determination that the assignments are collusive is correct.
In the case, the title deed registrations in the name of the defendant murisi are related to collusion. In short, collusion is the discrepancy between the will and the declaration created intentionally in order to deceive third parties. The sanction of collusion is nullity of the contract. In this respect, the passage of a certain period of time from the date of execution of the contract, or the consent to the contract, or the performance of the obligations of the contractors do not give validity to the collusive contract. Therefore, the filing of title deed cancellation lawsuits based on the legal ground of collusion is not subject to any time limit.
However, it is not obligatory to exercise, claim or sue for a right immediately or shortly after it arises. If the exercise of the right is subject to a statute of limitations or a period of limitation, it is sufficient to take action before the expiration of this period. In the absence of such a period, the right holder may exercise his right at any time, even after many years. The plaintiffs have exercised a right granted to them by the legal order.
Therefore, there is no violation of Article 2 of the TCC. I do not agree with the reversal opinion of the majority in terms of the merits of the matter.
However, since it is not correct to include the shares that were not inherited from the heir in the immovables numbered 59 and 159 parcels within the scope of the acceptance, the appeal of the defendants should be accepted specifically for the immovables numbered 59 and 159 parcels for this reason.