06 May IMMOVABLE PROPERTY ACQUIRED BY DONATION IS PERSONAL PROPERTY AND CANNOT BE INCLUDED IN THE LIQUIDATION
T.C THE SUPREME COURT
8. law office
Base No:2015/7405
Decision No:2017/369
Date of Decision: 17.01.2017
THE CASE OF LIQUIDATION OF THE GOODS REGIME – OF A CLERICAL NATURE
DUE TO THE ACQUISITION OF REAL ESTATE BY DONATION, THE DEFENDANT
IT IS HIS PERSONAL PROPERTY AND CANNOT BE INCLUDED IN THE LIQUIDATION –
A DECISION ON THE ACCEPTANCE OF THE CLAIMANT’S CLAIM FOR RECEIVABLES
NON–COMPLIANCE WITH THE PROVISION – VIOLATION OF THE PROVISION
SUMMARY: Due to the acquisition by the court of real estate of a clerical nature by donation
the plaintiff will receive it without regard to the fact that it is the defendant’s personal property and cannot be included in the liquidation
the decision to accept his request was contrary to the procedure and the law and required to be overturned.
(6098 P. K. m. 285)
Case and Decision: At the end of the trial between the parties and held in the case described above Dec
The court has decided to partially accept the case and partially reject it, and the defendant is the deputy of the judgment
upon appeal by the Department, the file was reviewed and considered necessary.
The plaintiff … his deputy stated that his client served as a non-commissioned officer, while the defendant was a housewife and had never
that it does not work, in a marriage union, the price of which is paid by the plaintiff and purchased on behalf of the defendant
stating that there is one registered residence, one office and money in a bank account, the goods
by reserving the rights related to the liquidation of the regime and the surplus, contributions, participation receivables and value
he has requested the collection of the increase share together with the interest; The principal value of the expense is TL 5,000.00
have been reported. with the disclosure petition dated 18.03.2014, TL 500.00 in terms of the house, in terms of the bureau
3,000.00 TL, 750.00 TL in terms of money, 750.00 TL in terms of money from Bank Asia
he explained their amounts; with the reclamation petition dated 17.02.2015, in which they duly invested their money, the house
they have increased the amount of demand to TL 60,500.00 in terms of office and TL 17,000.00 in terms of office.
Defendant … his deputy, the subject of the case is the cashing of the trappings worn at the wedding of the house and the defendant’s father
that it was purchased with his financial assistance, the bureau was transferred to his daughter by the defendant’s father, and
with the money of the bureau sold and the renovation of the house subject to the lawsuit, the necessary expenses of the joint children and education
he argued for the dismissal of the case, arguing that his expenses were spent, that the plaintiff had no contribution to the acquisition of his assets.
The court will receive a contribution of 60,500.00 TL from the point of view of the residence with partial acceptance of the case, the bureau
it is decided that it will receive 17,000.00 TL participation in terms of, and that it will receive 47.47 TL participation in terms of bank accounts
from the date of receipt from the defendant together with the legal interest to be processed and given to the plaintiff, the balance
it has been decided to reject the request. The judgment was appealed by the defendant’s deputy within the time limit.
1- The contents of the file, the documents of the case and the minutes of the trial, as well as the available evidence
since it was decided by the court at its discretion, there was no wrongdoing in the case, the defendant
other appeals of the deputy, which are outside the scope of the following paragraph, have not been considered in place.
2- As for the respondent’s deputy’s appeals to the bureau;
Donation is regulated in articles 285 et seq. of the Turkish Code of Obligations No. 6098. 285. According to the article
a donation (grant) is a gratuitous donation from an asset to a donor in order to have an effect on the health of the donor
it is defined as making a profit. As for the teaching, without receiving a reward from the giver,
in order to provide an increase in the donor’s assets and enrich it, certain
it has been described as giving him values. (Aydoğdu, Murat/Kahveci Nalan: Turkish Law of Obligations
Special Relations, Izmir 2013, p. 344, Yavuz, Cevdet: Special provisions of the Turkish Law of Obligations, 6. B., Istanbul
2002, p. 222).
According to the specifics of each concrete event, the will of donation can be clearly revealed, as well as in a hidden (implicit) way
can be done. For this reason, although some of the benefits are similar to donations, it is only
it is not considered forgiveness because it is not done for the purpose of forgiveness. Transfer takes place heavy
in order for the acquisition of obligations to qualify as a donation, the behavior that carries the purpose of the donation and
the will must be such that there is no room for hesitation.
According to the established practice of the Supreme Court and the Department, the
in the case of goods; Even if the sale is shown, the goods are considered donations. This
the saving transaction is considered a donation as a de facto presumption according to the usual course of life. This presumption
to the contrary, that is, to prove the claim of the spouse who claims that he was actually bought by giving his money
he is obliged to. This accepted actual presumption changes the party under the obligation to prove it. Mom or
the wife who claims that the savings on the property from the father is not a donation, but a real sale,
his claim is strong and convincing, especially the payment records related to the payment of the sale price
he must prove it with evidence.
As for the concrete dispute; the parties were married on 16.05.1995, filed on 17.09.2012
they were divorced when the decision on the acceptance of the divorce case was finalized on 20.02.2014.
The defendant’s father is registered in the out-of-court … name in the real estate deed of bureau No. 7, which is the subject of liquidation
while the marriage was registered in the name of the defendant by way of sale on 03.09.2007 in the union, 03.08.2012
in its history, it has been transferred to a third party who is not in the case by way of sale in the title deed.
If the court has ruled that the office is considered the acquired property of the defendant and will receive it in favor of the plaintiff
also, the justification does not coincide with the scope of the file. Above this transfer from father to defendant
as can be seen from the principles described, it must be accepted as a donation. The burden of proving the opposite of this actual presumption
the plaintiff is on the side. Although the plaintiff’s party was paid for, the bureau bought it from the defendant’s father
although he claimed that it was received, it cannot be proved from the scope of the file that the sale transaction is real
it is understood.Due to the fact that it was acquired by the court by donation in terms of real estate of a clerical nature, the defendant
the claimant’s claim for receivables without regard to the fact that it is his personal property and cannot be included in the liquidation
the decision to accept it in writing was contrary to the procedure and the law and required to be overturned.
Conclusion: For the reasons shown in paragraph (2) above of the decision appealed, the defendant’s attorney must write
since the appeals are considered on the spot, the Provisional Article 3 of the HMK No. 6100 has been adopted. the substance
428 HUMKnun with him. in accordance with the article above, other appeals to be overturned
(1). for the reason indicated in paragraph 366/3 of the IIK by the parties, it is rejected. according to the article, the Court of Cassation
within 10 days from the notification of the declaration, a request may be made to correct the decision against the announcement, and
the refund of the advance fee upon request was decided unanimously on 17.01.2017.
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