Court of Cassation 1. Department of Law Base No. 2013/21711, Decision No. 2014/11276

“text of jurisprudence”
COURT: GERMENCIK COURT OF FIRST INSTANCE
DATE : 06/19/2013
NUMBER : 2012/19-2013/442

The decision made by the local court at the end of the deed cancellation and registration case between the parties regarding the acceptance of the case by plaintiff Ayfer; the rejection of the case due to the decease by plaintiff Huseyin has been appealed by the defendant’s deputy within the legal period; the Examining Judge.. the report was read, the explanations were listened to, and the requirements were discussed and considered;
-DECISION-

The case is related to the request to cancel the title deed based on the legal reason of muris muvazaa and register it at the rate of share, and the court decided to accept the case from plaintiff Ayfer on the grounds that the muvazaa claim was fixed; to reject the case due to the waiver from plaintiff Huseyin on the grounds that the case was rejected.
Mirasbirakan A.G..’s is on 11.2.2011 back with the plaintiffs as heirs of defendant left, mirasbirakani 46 ada 83, 86 and 87 on his real estate parcel No. with foreclosures on the date of the defendant to a share in total 18.1.2011 10.150,00-TL as assigned by sales kayden is constant.
The plaintiffs have filed a lawsuit alleging that the transfer in question was carried out in secret in order to smuggle goods from the heirs, and during the trial, the plaintiff Hussein waived the case.
As is known, muvazaa, which is defined as “muris muvazaa” in practice and teaching, is a type of relative (mevsuf-qualified) muvazaa by its nature. In this case, mirasbirakan really wants to conclude a contract and transfer his real estate title deed. However, in order to deprive his heir of the right to inherit, he transfers his real estate, which he actually wants to donate, by hiding his main purpose, by explaining his will in accordance with the contract of sale or maintenance until death in the official contract he made in the deed.
In this case, the case law of the Supreme Court and l.4.1974 As explained in the Decision to Merge Case Law No. 1/2, the apparent contract does not comply with the actual will of the parties, the secret donation agreement is also 706 of the Turkish Civil Code, 237 of the Turkish Code of Obligations and 26 of the Land Registry Law. since it lacks the form conditions stipulated in the articles, all heirs whose right to inheritance has been violated, with or without a reserved share, can file a lawsuit and request that the official contract be invalidated due to muvazaa and the cancellation of the land registry created on the basis of it.
The fact that such disputes can be brought to a healthy, fair and correct solution depends on the fact that the true direction of the guarantee to the defendant, in other words, the original will and purpose of the inheritance will be revealed in a way that leaves no room for hesitation. Since it is often difficult to determine and clarify the true will and purpose, which is an internal problem and is hidden, it is of great importance to evaluate the evidence in this direction together and correctly, as well as to collect it completely. In this country, and the Customs and traditions of the region, societal trends, the usual flow of events, a justified and reasonable cause exists mirasbirakani in fulfilling the contract, whether or not the defendant’s buying power, whether it is the actual value at the date the difference between the sales price of the contract with the parties with the relationship between human necessity in such cases there are mirasbirakan take advantage of.
On the other hand, 6100 pp. HMK’s 190th. according to its article; ”The burden of proof belongs to the party that derives the right in its favor from the legal result related to the alleged case, unless there is a special regulation in the law. A party based on a legal presumption is only under the burden of proof of the case that forms the basis of the presumption. Except for the exceptions provided for in the law, the counterparty can prove the contrary of the legal presumption.”, TMK’s 6. according to the article; ”Unless there is a provision to the contrary in the law, each of the parties is obliged to prove the existence of the facts on which it bases its right. ”
As for the concrete case; In particular, the plaintiff’s witnesses who were heard did not make a statement that the guarantee was made in order to smuggle goods from the heirs. The difference between the actual prices is also not proof of decency. From the entire file scope, HMK’s 190 and TMK’s 6. in accordance with the articles, it is concluded that the plaintiff cannot prove his/her claim to muvazaa, in other words, the security is the actual sale.
As such, it is not true that a written provision has been established when it should have been decided to dismiss the case.
The defendant’s appeals are in place. For the reasons described in the adoption of the provision (provisional Article 3 of Law No. 6100.by sending a message ) HUMK.No. 428. it was unanimously decided on 09.06.2014 that it would be OVERTURNED in accordance with its article and that the advance fee received would be returned to the appellant.

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