T.C. SUPREME
8.Legal Department

Mainly: 2014/2640
Verdict: 2014/11919
Decision Date: 10.06.2014

A CASE IN WHICH THE VALUE INCREASE SHARE WILL BE RECEIVED – THE INTEREST MUST BE RULED VALID FROM THE DATE OF DECISION IN THE CASE – THE FAILURE TO DECIDE THE EXECUTION OF LEGAL INTEREST FROM THE DATE OF LITIGATION AND RECLAMATION, SO THAT IT IS AGAINST THE DEFENDANT

Summary: the case is related to the request to participate, and in such cases, interest must be ruled as valid from the date of decision in accordance with the article of the law. It was also not considered correct that the court decided to carry out legal interest from the date of litigation and reclamation to be against the defendant by collecting receivables arising from the right of participation and inheritance.

(4721 P. K. m. 5, 202, 220, 225, 232, 235, 236, 240, 499, 575, 639, 641, 642, 658) (743 S. K. m. 170) (4722 P. K. m. 10) (6098 P. K. m. 146) (818 P. K. m. 125)

Case: M. A. T. with M. E. T. Ankara 7 on the partial acceptance and partial rejection of the case that it will receive an increase in value between them and participate. 08.10.2013 day and 1460/1283 decision issued by the Family Court was requested by the court of Cassation to be examined by the acting plaintiff and the acting defendant. After examining the file, it was understood that the work was subject to a hearing, and a call paper was sent to the parties, which was appointed on Tuesday, 10.06.2014 for the hearing. On the day of the hearing, the defendant’s acting attorney E. He. and from the opposite side, the acting plaintiff is a lawyer. E. they arrived. After the hearing began and it became clear that the appeal request was within the period and the oral explanation of those present was heard, the hearing was terminated; the file was reviewed and considered necessary:

Verdict: Attorney of the plaintiff, his client and trustee G.’s in 1988, married his wife in 2006, received in marriage the Union of independent Island No. 10 on the number 12 part of the parcel 26183 bought immovable contributed largely to the receipt of the proxy, and the real estate acquired is marital property and TMC by explaining that it was used as a family residence 240. in accordance with the article, he will receive an increase in value and participate,as well as 1/4 legal inheritance share, if not enough, by adding the price, he will be granted ownership rights to the family residence and registration of the property right in the deed, and the defendant’s inheritance share is US $ 114,385.00, he wanted it to be decided to store it, he raised the amount of claim to us $ 190,625 in the reclamation petition dated 29.04.2013, in which he invested the expense.

The defendant’s attorney said that the case was filed improperly, that the plaintiff had no contribution to the acquisition of the property subject to the lawsuit, trustee G.he argued that he was one of the rich families of Adana, that the real estate was purchased with the money that fell on the share of the inheritance when his father died, and that the plaintiff had no justified reason to ask for specificity.

Partial acceptance of the case by the court,a total of us $ 123.040, 81,US $ 10,000, 00 from the date of the trial, along with legal interest from the date of reclamation, as the plaintiff will receive participation and inheritance, since the plaintiff claims ownership of the house by paying ivaz in exchange for inheritance rights and participation,the cost of the defendant’s inheritance rights and participation is TL 244,346.84,and TL 30,335. 34 for the improvement of the house is covered by this money,a total of TL 274,682. 18.participation will be offset by plaintiff’s s heritage and take 151.641,37 TL by the plaintiff with legal interest from the date of the decision to process has been paid by the defendant when a decision on registration of the immovable on behalf of the plaintiff, judgment was appealed by the defendant’s attorney.

Plaintiff and trustee G., Married on 10.04.1988, wife G. He died on 12.11.2006. Property regime between spouses in accordance with Article 225/last of the TMK.it ended on the date of his death. Since spouses do not claim that they have chosen another property regime, from the date of marriage until 01.01.2002, when TMK 4721 entered into force, 743 TKM 170. in accordance with Article 10 of Law No. 4722 on the separation of property between spouses, from 01.01.2002 until the date of the wife’s death. according to Article 202 of the TMK. according to the article, the regime of participation in acquired goods applies. Case subject 26183 Island 10 parcel 12 section, through sale on 06.04.2004 G. T. it was identified in his name and transferred on behalf of his heirs on 23.12.2006.

The case relates to the demand for participation arising from residual value due to the liquidation of the death-related property regime. 5.the scope of the file, the content of the case documents and the minutes of the trial, the court has decided by evaluating the evidence and if there is no hit, in such cases, the TMK. article 818 of the Code of Obligations 125. (TBK No. 6098.nun 146.m.) that it is stipulated that the 10-year statute of limitations contained in the article will be applied, trustee G.’e 65,000 TL left by inheritance from his father TMK 220/2. according to Article 232 and 235/1 of the TMK, the release values of the assets at the time of liquidation should be taken into account, according to the established practices of the Supreme Court, the date of liquidation is considered the date of decision,, according to the value of the real estate at the date of release, the value reached by the trustee’s contribution with his personal property was deducted and it was determined that the plaintiff would no longer receive participation in the value, other appeals of the plaintiff’s attorney and the defendant’s attorney were not considered in place.

Attorney for the plaintiff, TMK’s 240. in accordance with the article, the surrogate claimed ownership of the house by paying ivaz in exchange for inheritance rights and participation,when the court paid the plaintiff to the defendant along with legal interest that will be processed from the date of the decision, it was decided to register the real estate on behalf of the plaintiff. As can be seen, the court has bound the registration of the real estate on behalf of the plaintiff to the condition of payment of the cost of authenticity. The court’s duty is to resolve disputes between the parties and to resolve disputes. However, the dispute between the parties has not been resolved by the decision, and the decision to specify the request under the provision is related to the conditions. In such a case, there will also be a pause in the execution of the sentence.

The differences between the rights arising from the accession and the Terek can be listed roughly as follows; from the point of view of the accession; 1-the right to receive a nisbi in the nature of the personal right to receive the accession.
2-participation is due to the law, 3-liquidation of the regime of participation in acquired goods that end in death occurs as a prerequisite for sharing the Terek of the deceased spouse, 4-participation is among the debts that must be paid first and in advance, 5-participation is the debt of the heir, 6-the title of debt with the death of the heir passes to his heirs, and the heirs of TMK 641. according to Article 7-the right spouse of the claimant is both a creditor of Terek because of the participation and a debtor of Terek as an heir due to the debt of Terek. For this reason, the creditor and debtor are united in the right spouse of the claimant, 8-the creditor who will receive participation is responsible for the debts of Terek at the rate of inheritance share, 9-the right spouse has the right to refuse the inheritance (terekeyi) submerged in debt after receiving the participation claim, 10-the version values of the acquired goods are based on calculating the values at the time of liquidation, that is, at the date closest to the decision date (TMK.m.235/1), therefore, according to the process of the case, a long time may have passed between the date of death and the date of decision (3-5 years or even more), 11-the right spouse will receive the participation, 12-the court authorized and responsible for the liquidation of the property regime is the Family Court, 13-the rate of participation is ½ (half) in accordance with the law and is determined as a fixed rate (TMK.236/1), 14-goods subject to liquidation of the regime of participation in acquired goods are, as a rule, acquired goods. From the point of view of inheritance rights; 1-the right arising from Terek is not a personal right, but a right in kind arising from inheritance law, that is, a share in kind. 2-heirs are severally responsible for the debts of tereke. (TMC.m.641/1), 3-goods subject to liquidation of Terek are both personal goods and acquired goods of murisin. 4-in order to find the net amount of Tereken (net tereken), first of all, it is necessary to deduct the participation of the surviving spouse. In this way, before the share that will fall from the liquidation of Terek, it will have the share that will fall from the liquidation of the co-property regime. 5-inheritance opens with the death of the person who left the inheritance. Earnings and allocations related to the inheritance made in the health of the bequest are evaluated according to the state of the Terek at the time of death (TMK.m.575), that is, the version value of all personal and acquired goods in Terek is determined according to its status at the time (date) of death, 6-the right of inheritance of the creditor to participate is a response received due to the fact that the deceased is the heir, 7 – the court authorized and responsible for all cases related to the liquidation of Terek is the magistrate’s Court of settlement of the heir (TMK.m.658). 8-the legal inheritance share of the right spouse is 1/4 with the first clan, 1/2 with the second clan, 3/4 with the third clan, and if there are no heirs left, it is complete (TMK.m.499), that is, the share of inheritance is variable as described, 9 – although the surviving spouse’s title of inheritance has expired (for example, waiver of inheritance, rejection of inheritance, withdrawal from inheritance, deprivation of inheritance) may request from heirs that he will receive participation caused by the liquidation of the legal property regime, waiver of inheritance and rejection of inheritance does not mean waiver of participation, 10-there is no period of time in the law for the sharing of inheritance (inheritance). TMK’s 642. according to the article, each of the heirs may always request the sharing of the inheritance, unless they are obliged to continue the partnership in accordance with the contract or law (TMK.m.639, the statute of limitations is in question for the fortification case). Due to the differences described as mentioned, the liquidation of the accession regime and the liquidation of the Terek cannot be done together. If both Rights, which are subject to different liquidation rules, are liquidated simultaneously and together, it may be possible to encounter problems or consequences that will not be expected and unpredictable in the future. Whether there is a desire in this regard is also not effective in the result. There is no dispute that the participation fee is owed by Terek. But this right of credit is a right of credit that must be paid first. The plaintiff, as well as the terekeden creditor, is also the 641st of the TMK just announced. according to the article, he is also the debtor of Terek. In other words, in a concrete case, the creditor and the debtor are united in the claimant.

Given all this, it is quite difficult to predict the drawbacks and unsolvities that may arise from the fact that the participation will be taken and the Terek will be liquidated together. In this regard, the reduction of the share of inheritance belonging to the surviving claimant’s spouse, whether it is a request or not, is contrary to the principles that dominate the participation and the principles that dominate the inheritance law. In this case, first of all, the claimant’s participation will be paid from the claim as the priority debt of the claim, after which the heirs will have to share the remaining net claim between them in the proportion of their inheritance shares. The claimant’s debt to terke must only be taken into account during the liquidation of terke, and if there is a remaining share of the inheritance after the debt to terke has been deducted from the share of the inheritance, it must be paid to him. On the other hand, it is also possible for heirs to collect their receivables by filing an appeal case against each other. In the face of this situation, it is not possible to do the liquidation of the participation receivables and the liquidation of the Terek.

Then; with the participation of the defendant on the plaintiff’s immovable heritage, stemming from the will take and dedicate to the base alone, duly determined that the defendant by the plaintiff within a reasonable time to be determined by the court from the cashier’s Office of the court of ozgulemed that it would take time and given the opportunity to stock up on for the plaintiff the compensation of the court ozguleme the warehouse to the cashier’s office after the party made a decision about when it should be, without considering these aspects depending on the conditions of payment in writing before a ruling is issued on behalf of the plaintiff to cancel the registration of immovable salt it is against the law and procedures.

Apart from this, the case relates to the request to participate and in such cases, TMK 239/2.in accordance with the article, interest must be ruled as valid from the date of the decision. It was also not considered correct that the court decided to carry out legal interest from the date of litigation and reclamation to be against the defendant by collecting receivables arising from the right of participation and inheritance.

Since the appeals of the attorney of the plaintiff and the attorney of the defendant are considered in place for the reasons described above, the provision is Provisional to HMK 3. and Humk’s 428. in accordance with article 388/4 of the Humk, that there is no room for discretion in the fee of attorney in favor of the parties represented by the lawyer at the Supreme Court hearing to consider the requirements of the violation.(HMK m.297 / O) and 440/I. according to the articles,it was unanimously decided on 10.06.2014 that the Supreme Court could request a correction of the decision against the application within 15 days from the notification of the application and that the advance expenditure of us $ 2,101.00 should be returned to the appellant on request and the advance expenditure of us $ 2,102. 00 should be returned to the appellant on request.