Turkish Penal Code
14. Law Office
Basis: 2015/12867
Decision: 2016/2952
Decision Date: 08.03.2016
ACTION FOR CANCELLATION OF THE INVESTIGATION DOCUMENT – IF THERE IS IMMOVABLE OWNERSHIP, THE DEED REGISTRATION AND ITS BASIS DOCUMENTS SHOULD BE GIVEN AND WHO REALLY DETERMINED THE SUPERVISOR’S HEIRS – TERMINATION OF THE PROVISION
ABSTRACT: While the title deed registration and supporting documents, if any, belonging to the testator should be brought, by asking all the evidences from the parties, whether there is a paternity between the plaintiffs and the testator, who the heirs of the testator are, and a decision must be made based on the result, it was not considered correct to reject the case. had to be broken. It was decided to overturn the judgment.
Case and Decision: At the end of the hearing held upon the petition filed against the defendant on 14.12.2010 by the attorney of the plaintiffs and the cancellation of the inheritance certificate; After the decision of the Supreme Court of Appeals for the rejection of the case dated 10.07.2013, the appellant’s attorney decided to accept the appeal petition, which was understood to be in time, the file and all the papers in it were examined and the necessary consideration was taken:
The case is about the request to issue a new certificate of inheritance with the cancellation of the certificate of heirship.
Plaintiff’s attorney…. Based on the heirship document of the Civil Court of First Instance numbered 1963/373 and Decision 250, which was taken by the defendant …. The Court of Peace requested the cancellation of the inheritance certificate numbered 2009/246 and Decision 1285 and the issue of the new inheritance certificate of the testator ….
The defendant defended the dismissal of the case.
Although it was determined by the court, in the reply letter of the General Directorate of Population and Citizenship Affairs dated 30.05.2013, that ….. born in 1259 and daughter …, born in 1308, were registered in the household, the records of … It was decided to reject the case on the grounds that no connection could be established with Yaşar and no record could be found regarding Yaşar.
The judgment was appealed by the plaintiffs attorney.
In order to reach a healthy conclusion in a case, it is necessary to ask and determine the evidence from the parties, to collect all the evidence that will be shown and to affect the outcome of the case, to bring the necessary documents from the relevant places, and to evaluate all the collected evidence together and make a decision according to the result. In addition, since the lawsuits filed with the request of issuing a certificate of inheritance are subject to uncontested jurisdiction, the principle of ex officio investigation will be applied in such lawsuits, in such lawsuits filed by the heirs, the plaintiff has to prove that he is the heir only, in other words, the paternity between him and the legator, whether there are any other heirs. and inheritance shares will be determined ex officio by the court.
On the other hand, in Article 30 of the Turkish Civil Code No. 4721; It has been stated that birth and death can be proven with all kinds of evidence, primarily with the records in the population registry, if there is no record in the population registry or if it is understood that the record found is not correct.
In the concrete case; There is no doubt that all means should be used to determine the identity records and addresses of the inheritors and their heirs, and to obtain this information. However, the court brought the title deed records and supporting documents, the contract table belonging to the title deed record of the testator, and the identity registration information and address of the testator was not searched, and these issues were not asked from the land registry office. If there is a real estate belonging to the testator, the title deed registration and documents should be brought, by asking all the evidences from the parties, whether there is a paternity between the plaintiffs and the testator, who the heirs of the testator are, and a decision must be made based on the result. .
Conclusion: For the reasons explained above, it was unanimously decided on 08.03.2016 that the appeals of the plaintiffs’ attorney be accepted and the verdict be overturned and the fee paid in advance be returned to the depositor upon request.
