18 May Donation Can Not Be Proved
T.C. SUPREME
8. Legal Department Principal No: 2015/11101
Decision No: 2017/2353
Decision Date: 23.02.2017
LIQUIDATION OF PROPERTY REGIME AND CLAIM CASE-IN THE DIRECTION OF DONATION
THE PRESUMPTION THAT THE CONTRARY CANNOT BE PROVED BY THE PLAINTIFF-PLOT
PERSONAL PROPERTY OF THE DEFENDANT DUE TO THE DONATION OF AVENGALI
THE NEED TO OBSERVE THAT IT IS
Summary: since the presumption of the donation could not be proved by the plaintiff otherwise, this plot should be avenged
considering the calculation that the land is the personal property of the defendant due to its donation
it should be kept. On the value of the remaining muhdesatlar after deducting the ground fee by the court
while provision should be established, provision should be established by including the ground Price in the calculation.
the decision had to be overturned.
(4721 P. K. m. 179, 202, 225) (743 P. K. m. 170) (4722 P. K. m. 10) (6100 P. K. m. 33) (YIBK.
01.04.1974 T. 1974/1 E. 1974/2 K.) (YIBK. 27.03.1957 T. 1956/12 E. 1957/2 K.) (YHGK. 26.06.2013
T. 2012/8-1137 E. 2013/879 K.)
At the end of the proceedings between the parties and in the case described above, the court shall decide,
the decision has been made to accept the case and upon appeal of the sentence by the defendant, the Department
the case was reviewed, considered necessary.
Claimant … attorney will be credited with liquidation of the property regime due to the immovable specified in the lawsuit petition
he made a request.
The defendant … pleads guilty.
By the court, with the acceptance of the plaintiff’s case,calculated for the immovable subject to the lawsuit 25.665. 00-TL
the decision to collect from the defendant with the legal interest starting from the date of the decision to take part
upon submission, the sentence was appealed by the defendant’s attorney.
1-The contents of the file, the documents of the case and the minutes of the trial, the existing evidence
since it was decided by a court of commendation and, in the case, there was no impropriety, the defendant
the attorney’s Appeals, which fall outside the scope of the following clause, have not been seen in place.
2-to put forward material events to the parties, to make legal qualifiers and to apply the law
it is up to the judge to determine its articles (6100 P.Li HMK 33 m). Lawsuit based on the way the claim was put forward,
the residual value is related to the request that you will receive to participate.
As for the concrete case; spouses, married on 23.11.1989, divorce filed on 20.09.2010
they were divorced when the verdict on the acceptance of his case was finalized. Property regime divorce case
as of the date it was opened, it ended (TMK 225/end). Further property regime is chosen by contract
from the date of marriage no 4721 until the date of the date of entry into force of TMK 01.01.2002 goods
separation (TKM No. 743 170.m) from this date until the end of the goods regime, the regime for participation in acquired goods is valid (10 of the law No. 4722, TMK 202/1.m). Subject to liquidation 132 Island 1 parcel numbered immovable, between spouses
purchased on 12.07.2006 where the regime of participation in the acquired property is valid, on behalf of the defendant spouse
has been registered. In the liquidation of the property regime, provisions relating to the regime to which the spouses are attached shall be applied
(TMK 179.m).
The scope of all files and documents examined; 132 ada 1 parcel of the immovable subject to lawsuit no.
by showing the sale of the land to the defendant by the defendant’s mother on 12.07.2006
it is understood he has been transferred.
Defendant witness statements, Cadastral record of the immovable subject of the lawsuit, land registry, official deed with all
according to the scope of the file and the usual flow of life, the sale of the mother to the defendant even if the sale is shown in the deed
are in the nature of the donation. (YIBK No. 1/2 dated 01.04.1974; No. 123/2 dated 27.03.1957) of the Supreme Court and
This is the way our apartment is accepted. The obligation of proof lies with the party that suggests otherwise of the usual situation. (GCM
26.06.2013 date 1137/879 issue).
In the concrete case, since this presumption in the direction of donation cannot be proved otherwise by the plaintiff, this plot
in calculating the fact that the plot is the personal property of the plaintiff due to the fact that the avengali is a donation
should be taken into consideration. After the court deducts the ground fee, the remaining muhdesatlarının
while provision should be established on its value, provision should also be included in the calculation of the ground Price
the decision had to be overturned because it was not right to be set up.
Conclusion: the decision of the defendant’s Attorney upon the acceptance of the appeals Appeals for reasons written in Paragraph (2) above
Provisional 3 of HMK No. 6100. article 428 of Humk No. 1086 by dispatch. according to the article
For reasons written in Paragraph (1) Above, the other appellate objections of the defendant’s attorney to the corruption
rejection, by the parties in accordance with Article 440/I of the Court of Cassation Department notification of the
request for a correction of the decision can be made within 15 days against the notice and the appellant of the advance fee
his extradition was decided unanimously on 23.02.2017.
No Comments