The Difference Between The Prices Is Not Evidence Of Collusion
Court of Cassation 1st Civil Chamber 2013/21711 Main, 2014/11276 Decision
“Case Law Text”
COURT OF FIRST INSTANCE GERMENCİK CIVIL COURT OF FIRST INSTANCE
DATE : 19/06/2013
NUMBER : 2012/19-2013/442
At the end of the deed cancellation and registration case between the parties, the decision of the local court regarding the acceptance of the lawsuit in terms of the plaintiff Ayfer and the dismissal of the lawsuit due to waiver in terms of the plaintiff Hüseyin was appealed by the defendant’s attorney within the legal period; The report of the Examining Judge… was read, his explanations were listened to, and the necessity was discussed and considered;
-DECISION-
The lawsuit is related to the request for cancellation of the title deed and registration in proportion to the share based on the legal reason of muris collusion, and the court decided to accept the lawsuit for the plaintiff Ayfer on the grounds that the claim of collusion was fixed, and to dismiss the lawsuit for the plaintiff Hüseyin due to waiver.
It is a matter of record that the heir, A.G., died on 11.2.2011, leaving the defendant as the heir together with the plaintiffs, and that the heir assigned his share in the immovables numbered 46 block 83, 86 and 87 parcels, together with the liens on them, to the defendant on 18.1.2011 for a total amount of 10.150,00 TL.
The plaintiffs filed the present lawsuit with the claim that the said transfers were made in collusion in order to evade property from the heirs, and during the trial, the plaintiff Hüseyin waived the lawsuit.
As it is known, the collusion, which is defined as “muris collusion” in practice and doctrine, is a type of relative collusion (mevsuf-qualified). In the aforementioned collusion, the heir really wants to conclude a contract and transfer the immovable property with title deed. However, in order to deprive his heir of his right of inheritance, he conceals his main purpose and transfers the immovable property that he actually wants to donate by explaining his will in the official contract made at the land registry office in line with the sale or maintenance contract until death.
In this case, since the apparent contract does not conform to the real will of the parties, as explained in the established Court of Cassation jurisprudence and the Unification Decision dated l.4.1974 and numbered 1/2, and since the hidden donation contract lacks the formal conditions stipulated in Articles 706 of the Turkish Civil Code, 237 of the Turkish Code of Obligations and 26 of the Land Registry Law, all heirs whose inheritance rights are violated, whether they have a reserved share or not, may file a lawsuit and request the determination of the invalidity of the official contract due to collusion and the cancellation of the title deed record created on the basis of this.
A healthy, fair and correct resolution of such disputes depends on the real aspect of the assignment made to the defendant, in other words, the real will and purpose of the heir without any doubt. Since it is generally difficult to determine and clarify the real will and purpose, which is an internal problem and which is concealed, it is of great importance that the evidence in this direction is not only collected completely, but also evaluated together and correctly. In this regard, it is imperative to make use of facts such as the customs and traditions of the country and the region, social tendencies, the ordinary course of events, whether the heir has a just and reasonable reason for making the contract, whether the defendant has the purchasing power, the difference between the sales price and the actual value on the date of the contract, and the human relationship between the parties and the heir.
On the other hand, according to Article 190 of the 6100 s. CCP; “Unless there is a special provision in the law, the burden of proof belongs to the party who draws a right in his favor from the legal result attached to the alleged fact. The party relying on a legal presumption shall bear the burden of proof only with respect to the fact forming the basis of the presumption. Except for the exceptions stipulated in the law, the other party may prove the contrary of the legal presumption.” According to Article 6 of the Civil Code; ”Unless otherwise provided by law, each party is obliged to prove the existence of the facts on which he bases his right. ”
As for the concrete case; especially the witnesses of the plaintiff, who were heard, did not make any statement that the assignment was made for the purpose of evading property from the heirs. The mere difference between the prices is also not evidence of collusion. From the entire file, it is concluded that the plaintiff cannot prove the allegation of collusion pursuant to Article 190 of the CCP and Article 6 of the TMK, in other words, the assignment is a real sale.
As such, it is not correct that the written judgment has been rendered while the lawsuit should be dismissed.
Appeal objections of the defendant are appropriate. It was unanimously decided on 09.06.2014 that the judgment shall be nullified in accordance with Article 428 of the Code of Civil Procedure (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.