08 May FAILURE TO PROVE DONATION – ACCEPTANCE OF THE PLOT AS THE DEFENDANT’S PERSONAL PROPERTY
T.C. SUPREME
8. Law Department
Base No:2015/11101
Decision No :2017/2353
Date of Decision :23.02.2017
LIQUIDATION OF THE GOODS REGIME AND LITIGATION OF RECEIVABLES – DONATION
THE CONTRARY OF THE PRESUMPTION CANNOT BE PROVED BY THE PLAINTIFF – THE PLOT
THE DEFENDANT’S PERSONAL PROPERTY DUE TO THE FACT THAT THE SUSPECT IS A DONOR
THE NEED TO OBSERVE THAT
ABSTRACT: Since the presumption of donation cannot be proven otherwise by the plaintiff, the revenge of this plot
the fact that the plot is the defendant’s personal property due to the fact that it is a donation should be taken into account in the calculation
it should be noted. Based on the value of the remaining statements after deducting the cost of the ground by the court
while the provision should be established, it is correct to establish the provision by including the floor price in the calculation
the decision had to be overturned because it was not.
(4721 Pp. K. m. 179, 202, 225) (743 Pp. 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 trial between the parties and conducted in the case described above, the Court shall Dec,
it has been decided to accept the case and upon appeal of the decision by the defendant, the Department
the case was examined and considered as necessary.
The plaintiff … will receive the deputy by liquidation of the property regime due to the immovable property specified in the petition of claim
he made a request.
The defendant … has defended the dismissal of the case.
25.665,00-TL calculated by the court for the immovable property subject to litigation with the acceptance of the plaintiff’s case
the decision on the collection from the defendant together with the legal interest will begin from the date of the decision of the participant
upon its issuance, the decision was appealed by the defendant’s deputy.
1- The contents of the file, the documents of the case and the minutes of the trial, the available evidence
since it was decided by the court at its discretion and there was no wrongdoing in the case, the defendant
the appeals of his deputy, which are outside the scope of the following paragraph, have not been considered in place.
2- To put forward material events to the parties, to make a legal qualification and to apply the law
it is up to the judge to determine the articles (6100 p.(HMK 33 m). According to the way the claim is put forward, the case,
participation in the residual value is related to the will that you will receive.
As for the concrete event; the spouses were married on 23.11.1989, the divorce was filed on 20.09.2010
they were divorced when the decision on the acceptance of his case was finalized. The property regime of the divorce proceedings
it has expired as of the date of its opening (TMK 225/son). Further, another goods regime is selected by the contract
from the date of marriage until 01.01.2002, when TMK No. 4721 entered into force, since it was not issued, goods
separation (TKM No. 743 170.m), if from this date until the date of expiration of the goods regime, the regime of participation in the acquired goods applies (article 10 of law No. 4722, TMK 202/1.m). Immovable property numbered 132 Dec 1 parcel, subject to liquidation, between spouses
purchased on 12.07.2006, when the regime of participation in the acquired goods is valid, on behalf of the defendant spouse
it has been registered. In the liquidation of the goods regime, the provisions relating to the regime to which the spouses are bound are applied
(TMK 179.m).
From the entire scope of the file and the documents examined; 132 island 1 parcel real estate subject to litigation
by showing the sale of the land plot to the defendant by the defendant’s mother on 12.07.2006
it is understood that it has been transferred.
Defendant witness statements, cadastral minutes of the immovable property subject to lawsuit, land registry, official deed and all
according to the scope of the file and the usual course of life, the sale of his mother to the defendant, even if the sale is shown in the title 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
The acceptance of our apartment is in this direction. The obligation to prove is on the side that suggests the opposite of the usual situation. (GCM
issue No. 1137/879 of 26.06.2013).
In a concrete case; since this presumption against donation cannot be proven otherwise by the plaintiff, this plot
in calculating the fact that the plot is the plaintiff’s personal property due to the fact that the suspect is a donor
it should be considered. After deducting the cost of the ground by the court, the remaining memoranda
while it is necessary to establish a provision on its value, the ground value should also be included in the calculation of the provision
since its establishment was not correct, the decision had to be overturned.
Conclusion: By accepting the appeals of the defendant’s attorney for the reasons written in paragraph (2) above, the judgment
Provisional Article 3 of HMK No. 6100. article 428 of HUMK No. 1086. in accordance with the article
For reasons written in paragraph (1) above of the other appeals of the defendant’s attorney,
refusal shall be made by the parties in accordance with Article 440 /I of the CMB from the date of notification of the decision of the Chamber of the Supreme Court
an appeal may be made against the decision within 15 days and the advance fee may be paid to the appellant
his extradition was decided unanimously on 23.02.2017.
No Comments