14 Nov Statute Of Limitations In Cases Filed Due To Collusion
Supreme Court 1. Legal Department 2013/21600, 2014/1631 Decision 30.01.2014 Decision
CANCELLATION AND REGISTRATION OF THE TITLE DUE TO COLLUSION
ABUSE OF RIGHT
OPENING OF THE CASE AFTER MANY YEARS, WHICH IS NOT SUBJECT TO THE LOWERING OF THE RIGHTS PERIOD AND THE STATUTE OF LIMITATIONS
Article 2 of the Turkish Civil Code (TMK) (4721)
“Case Law Text”
At the end of the case of title cancellation, registration, tenkis seen between the parties, the decision made by the Local Court regarding the acceptance of the case was appealed by the defendants ‘ lawyer within the legal period, and the appellants on the notification made on Tuesday 09.07.2013, which was determined as the day of the hearing, lawyer H. He. with the appellants acting Attorney R. I.after the decision was made to accept the appeal, which is understood to have been granted and registered during the trial, oral statements from the deputies were heard, the hearing was reported to have ended, and the work was left to the decision. Bilahare Examination Judge ….. the report was read and received. Dossier examined and considered:
The case is related to the cancellation of the title based on the legal cause of collusion abatement and registration at the rate of inheritance share, if not possible, to the request for abatement.
From the contents of the file and the evidence collected; from the real estate subject to contention, from the real estate deed No. 546.. K.. he was identified in the name and the cadastral record was finalized on 15.03.1982, while the real estate No. 419 parcel was registered in the name of the land registry No. 60 dated February 1954, while he left the inheritance in 1969, his son H.K.L’a price against the determination of the cadastre on behalf of Hamdi by stating that the determination was made and the cadastre minutes were completed on 15.03.1982, other contention subject 59 and 159 parcels during the determination of the cadastre half the share of March 1335 71 and 72 with the land registry records A.son Y., 6 shares as of 24 shares with the deed records No. 68 and 69 dated May 1950. his wife Z. and a share of 3 out of 18. their son th., F., Z., M., N. and E. 59 and 159 parcels Z in the external and Rizai taxi that they have made between those who are registered in their names. with his children Penbe, F., Z., M., N.ve E.it hit, Z. On his death as a widow in 1959, his children remained as heirs, leaving an inheritance from stakeholders.principal N. s on their behalf, P., Z. and M. acting by proxy, their shares are paid by Silivri Notary in accordance with the 2008 contract on the promise of sale numbered 22.01.1979.. K..he said he sold ¾ of his share to H. K.in his name, ¼ share is D.daughter E.F., who was identified in his name and left a legacy’s sold these places and consent to the determination of the signature received, Cadastral minutes were completed on 15.03.1982 without objection, stakeholder H. K.L’s in these moves E.ye he also acquired ¼ shares on 31.12.2001 and owned all of the parcels, leaving a root inheritance born in 1911. K.died on 06.04.1991, left behind the claimant’s children as heirs E. M. N. His son H., who died on 26.03.2005the plaintiff’s bride, who is the wife of C. descendants and C. with his son H. who died on 07.04.2003’s wife defendant N. other defendants with grandchildren remain.
Plaintiffs, heirs F.K. by murisi of the defendants H. K.they filed a lawsuit claiming that the assignment was intended to kidnap property from the heirs and was counselee.
In order to smuggle property from the other children of the bequeatherd, the court determined that the property of the defendants, legotor, was his son H.it was decided to accept the case on the grounds that he had transferred it to counselee.
However, during the trial, the prosecution contention with the petition dated 16.05.2011 money order 546 in terms of moving left to throw their case a subject of their estates parcel appearing for the Defendant dated 22.06.2011 in the session that are available for reporting and read this petition, although the respondent of the case about to be abandoned by the party atıye 546 parcels referred to as parcels have been opposed due to leave the horse should be judged not in relation to the provision in the facility, while it is not true that the scope of the aforementioned immovable have been taken into considered.
In terms of other real estate subject to contention; all of parcel 419 and parcel 59 and 159 ¾ share during the cadastral determination of defendants murisi H.. K..it was determined on behalf of and cadastral determinations were finalized on 15.03.1982, leaving the root legacy F. K. although there is no statute of limitations and lowering of rights in cases filed based on the legal cause of muris muvazaasi, from 06.04.1991 when he died until 10.02.2010, the case was not filed; after all this time, the case was filed 2 of the Turkish Civil Code. it is clear that it is incompatible with the provision of the article.
In this case, it is not true that there is no place for the government facility due to the abandonment of 546 parcels, and in terms of other real estate, the decision to dismiss the case should be made, as written with a misleading assessment.
The appeals of the defendants attorney are in place for the stated reasons. With the adoption of the provision (provisional 3 of Law No. 6100.send the item with no article 1086.of 428.Article 14 of the Attorney’s fee tariff, which entered into force on 29.12.2012, to be broken in accordance with the article, to return the advance fee received to the appellant. 990.00 for the acting appellants who come in accordance with article.TL. the hearing was decided by a majority vote on 30.01.2014 to remove the attorney’s money from the appellants.
– VOTING AGAINST-
1) – I participate in the decision to disrupt the apartment from the point of view of the real estate of 546 parcels subject to the case.
2) – however, 59, 159 and 419 parcels in terms of real estate file content, collected evidence, legal and legal grounds on which the provision is based, according to the absence of a hit in the evaluation of the evidence, the court’s determination that the assignment is counselee is correct.
In the case, the defendants are infected with collusion Land Registry records formed on behalf of murisi. Collusion is a deliberately created contradiction between the Will and the declaration in order to deceive third parties. The sanction of muvazaan is the butlan of the contract. In that respect, a certain period has passed since the date of execution of the contract, or the granting of consent to the contract or the fulfillment of the obligations of the covenants does not give effect to the muvazaali contract. For this reason, the opening of title deed cancellation cases based on the legal cause of collusion is not subject to any period of time.
However, it is not mandatory for a right to be exercised immediately or shortly after its birth, to be requested or sued. If the exercise of the right depends on a statute of limitations or a lowering of the right, it is sufficient to take action before the expiration of this period. In cases where such a period does not exist, the right holder can use his right at any time, even after many years have passed. Plaintiffs have exercised a right that the legal order recognizes to them.
Hence TMK 2.there is no contradiction in substance. On the merits of the matter, I do not agree with the opinion of the majority.
However, since it is not right to be included in the acceptance of shares that are not transferred from the inheritor in the real estate numbered 59 and 159 parcels, the defendants ‘ appeal should be accepted for this reason in terms of the real estate numbered 59 and 159 parcels.
No Comments