T.C THE SUPREME COURT
\n8. law office<\/p>\n
Base No:2015\/7405
\nDecision No:2017\/369
\nDate of Decision: 17.01.2017<\/p>\n
THE CASE OF LIQUIDATION OF THE GOODS REGIME \u2013 OF A CLERICAL NATURE
\nDUE TO THE ACQUISITION OF REAL ESTATE BY DONATION, THE DEFENDANT
\nIT IS HIS PERSONAL PROPERTY AND CANNOT BE INCLUDED IN THE LIQUIDATION \u2013
\nA DECISION ON THE ACCEPTANCE OF THE CLAIMANT’S CLAIM FOR RECEIVABLES
\nNON\u2013COMPLIANCE WITH THE PROVISION – VIOLATION OF THE PROVISION<\/p>\n
SUMMARY: Due to the acquisition by the court of real estate of a clerical nature by donation
\nthe plaintiff will receive it without regard to the fact that it is the defendant’s personal property and cannot be included in the liquidation
\nthe decision to accept his request was contrary to the procedure and the law and required to be overturned.
\n(6098 P. K. m. 285)
\nCase and Decision: At the end of the trial between the parties and held in the case described above Dec
\nThe court has decided to partially accept the case and partially reject it, and the defendant is the deputy of the judgment
\nupon appeal by the Department, the file was reviewed and considered necessary.
\nThe plaintiff … his deputy stated that his client served as a non-commissioned officer, while the defendant was a housewife and had never
\nthat it does not work, in a marriage union, the price of which is paid by the plaintiff and purchased on behalf of the defendant
\nstating that there is one registered residence, one office and money in a bank account, the goods
\nby reserving the rights related to the liquidation of the regime and the surplus, contributions, participation receivables and value
\nhe has requested the collection of the increase share together with the interest; The principal value of the expense is TL 5,000.00
\nhave been reported. with the disclosure petition dated 18.03.2014, TL 500.00 in terms of the house, in terms of the bureau
\n3,000.00 TL, 750.00 TL in terms of money, 750.00 TL in terms of money from Bank Asia
\nhe explained their amounts; with the reclamation petition dated 17.02.2015, in which they duly invested their money, the house
\nthey have increased the amount of demand to TL 60,500.00 in terms of office and TL 17,000.00 in terms of office.
\nDefendant … 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
\nthat it was purchased with his financial assistance, the bureau was transferred to his daughter by the defendant’s father, and
\nwith 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
\nhe 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.
\nThe 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
\nit 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
\nfrom the date of receipt from the defendant together with the legal interest to be processed and given to the plaintiff, the balance
\nit has been decided to reject the request. The judgment was appealed by the defendant’s deputy within the time limit.
\n1- The contents of the file, the documents of the case and the minutes of the trial, as well as the available evidence
\nsince it was decided by the court at its discretion, there was no wrongdoing in the case, the defendant
\nother appeals of the deputy, which are outside the scope of the following paragraph, have not been considered in place.<\/p>\n
2- As for the respondent’s deputy’s appeals to the bureau;
\nDonation is regulated in articles 285 et seq. of the Turkish Code of Obligations No. 6098. 285. According to the article
\na donation (grant) is a gratuitous donation from an asset to a donor in order to have an effect on the health of the donor
\nit is defined as making a profit. As for the teaching, without receiving a reward from the giver,
\nin order to provide an increase in the donor’s assets and enrich it, certain
\nit has been described as giving him values. (Aydo\u011fdu, Murat\/Kahveci Nalan: Turkish Law of Obligations
\nSpecial Relations, Izmir 2013, p. 344, Yavuz, Cevdet: Special provisions of the Turkish Law of Obligations, 6. B., Istanbul
\n2002, p. 222).
\nAccording to the specifics of each concrete event, the will of donation can be clearly revealed, as well as in a hidden (implicit) way
\ncan be done. For this reason, although some of the benefits are similar to donations, it is only
\nit is not considered forgiveness because it is not done for the purpose of forgiveness. Transfer takes place heavy
\nin order for the acquisition of obligations to qualify as a donation, the behavior that carries the purpose of the donation and
\nthe will must be such that there is no room for hesitation.
\nAccording to the established practice of the Supreme Court and the Department, the
\nin the case of goods; Even if the sale is shown, the goods are considered donations. This
\nthe saving transaction is considered a donation as a de facto presumption according to the usual course of life. This presumption
\nto the contrary, that is, to prove the claim of the spouse who claims that he was actually bought by giving his money
\nhe is obliged to. This accepted actual presumption changes the party under the obligation to prove it. Mom or
\nthe wife who claims that the savings on the property from the father is not a donation, but a real sale,
\nhis claim is strong and convincing, especially the payment records related to the payment of the sale price
\nhe must prove it with evidence.
\nAs for the concrete dispute; the parties were married on 16.05.1995, filed on 17.09.2012
\nthey were divorced when the decision on the acceptance of the divorce case was finalized on 20.02.2014.
\nThe 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
\nwhile the marriage was registered in the name of the defendant by way of sale on 03.09.2007 in the union, 03.08.2012
\nin its history, it has been transferred to a third party who is not in the case by way of sale in the title deed.
\nIf the court has ruled that the office is considered the acquired property of the defendant and will receive it in favor of the plaintiff
\nalso, the justification does not coincide with the scope of the file. Above this transfer from father to defendant
\nas can be seen from the principles described, it must be accepted as a donation. The burden of proving the opposite of this actual presumption
\nthe plaintiff is on the side. Although the plaintiff’s party was paid for, the bureau bought it from the defendant’s father
\nalthough he claimed that it was received, it cannot be proved from the scope of the file that the sale transaction is real
\nit 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
\nthe claimant’s claim for receivables without regard to the fact that it is his personal property and cannot be included in the liquidation
\nthe decision to accept it in writing was contrary to the procedure and the law and required to be overturned.
\nConclusion: For the reasons shown in paragraph (2) above of the decision appealed, the defendant’s attorney must write
\nsince the appeals are considered on the spot, the Provisional Article 3 of the HMK No. 6100 has been adopted. the substance
\n428 HUMKnun with him. in accordance with the article above, other appeals to be overturned
\n(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
\nwithin 10 days from the notification of the declaration, a request may be made to correct the decision against the announcement, and
\nthe refund of the advance fee upon request was decided unanimously on 17.01.2017.<\/p>\n