T.C. SUPREME COURT

1. Civil Deparment

Base: 2012/16321

Decision: 2013/3719

Date of Decision: 18.03.2013

CASE OF CANCELLATION AND REGISTRATION OF TITLE DEEDS – THAT FRAUD CAN BE PROVED BY ALL KINDS OF EVIDENCE – THAT THE CLAIMS AND EVIDENCE OF THE PARTIES MUST BE EXAMINED AND DECIDED BY THE COURT IN ACCORDANCE WITH THE PRINCIPLES DESCRIBED – THAT THE PROVISION HAS BEEN OVERTURNED

ABSTRACT: Cheating (deception) can be proved by any kind of evidence, and the exercise of the right of cancellation does not depend on any form. A statement of will that will be sent to the other party within a one-year period from the date of learning of the trick (deception) can also be used through a defi or lawsuit. However, the court has not conducted an examination and evaluation in a manner that covers the principles and facts described above. In this case; it is not true that the claims and evidence of the parties should be examined by the court in accordance with the principles described and a decision should be made according to the result, while the decision was made by erroneous assessment and incomplete examination.

(6098 P. K. m. 36) (818 P. K. m. 28)

Case: At the end of the case of cancellation and registration of the title deed, compensation, the decision made by the local court regarding the rejection of the case was appealed by the plaintiff’s attorney within the legal period, but the file was examined, the report of the Dec Judge Derya Alaybeyoglu was read, his statements were listened to, and the case was discussed and considered as necessary:

Decision: The case concerns requests for cancellation and registration of the title deed and compensation.

In a concrete case where the court considers that the case is based on the legal reason for the appeal against the donation, the 244 of the Code of Obligations. it was decided to dismiss the case on the grounds that the conditions for applying for the donation described in the article did not occur.

From the contents of the file and the evidence collected, the plaintiff’s real estate No. 3 parcels was transferred to Defendant N. on 08.02.2001.by selling their shares in parcels 21, 243, 317 and 320 to defendant M on 27.02.2004.it is understood that he was referred to ’

After the plaintiff said that he was worried about his advancing age and the future of his wife’s death, the defendants said that his son and daughter-in-law would be with him until he died and take care of him, his bride N.after a while, he transferred his 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 was offended and fell into disrepair, the defendants put him in front of the door these days when he needed it most, so that he realized that their main goal was to get their valuable real estate and was deceived, when the defendants found out that they were going to sue, they also opened the case by claiming that they had disposed of some real estate.

As for the content of the claim described and the way it was put forward, it is clear that it is based on the legal reason for cheating (deception). The plaintiff also stated that his assets were taken away by cheating (deception) with a petition dated 13.07.2011 during the trial and explained that it was based on the legal reason for cheating (deception).

As is known, cheating (deception) is defined as arousing a deliberately erroneous opinion in order to get a person to declare a will, especially to enter into a contract, or protecting an erroneous opinion that exists essentially, or ensuring its continuation. A mistake is also a mistake, and a trick is a mistake. as explained in Article 36/1 of the Turkish Code of Obligations No. 6098 (Article 28 /l of the Code of Obligations No. 818), which entered into force on 01.07.2012 < If one of the parties has concluded a contract as a result of deception of the other, it is not bound by the contract, even if it is not based on error.> In the presence of the mentioned conditions, the deceived party can effectively eliminate the legal relationship to the past (makable shamil) by exercising its right and ask for what it has given back.

On the other hand, cheating (deception) can be proved by all kinds of evidence, and the exercise of the right to cancel does not depend on any form. A statement of will that will be sent to the other party within a one-year period from the date of learning of the trick (deception) can also be used through a defi or lawsuit.

However, the court has not conducted an examination and evaluation in a manner that covers the principles and facts described above.

In this case, it is not true that the claims and evidence of the parties have been examined by the court in accordance with the principles described and a decision should be made according to the result, while the decision has been made by erroneous evaluation and incomplete examination as written.

Conclusion: The plaintiff’s appeals referring to this direction are in place. For the reasons described in the provision on its adoption (provisional Article 3 of Law No. 6100.article 1086 HUMK.428 of the. according to the article, it was decided unanimously on 18.03.2013 that it would be OVERTURNED and that the advance fee received would be returned to the appellant.

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