Muvazaa is an agreement between the parties to deceive third parties, to make a contract that does not comply with their real will, although it is apparently valid, that does not make any sense among themselves.
In order for the collusion conditions to be fulfilled, the following three conditions must be present:
There must be a knowingly and willfully incompatibility between the real purposes of the parties and their transactions,
It must have the purpose of deceiving third parties,
The parties must agree to engage in collusive transactions.
Inheritance collusion (abduction) is a person’s presentation of unrequited gains made in order to deprive his heir of the right of inheritance as a contract of sale or maintenance until death. The main purpose here is to prevent the heirs with reserved shares from receiving their inheritance shares by filing a lawsuit for criticism in the future. In other words, the inheritor wants to prevent his heirs from filing lawsuits in the future by pretending that he has transferred the goods he wants to donate in return for sale.
In the case of abduction from inheritance, it is investigated whether there are four elements of collusion. These;
Appearance transaction (contract): In practice, the apparent transaction appears as a contract of sale, donation or care until death. These transactions are made in a way that does not comply with the real will of the inheritor in order to smuggle goods from the heirs, and in a way that does not result in any judgment or result. ,
Collusion agreement: It is the agreement of the inheritor and the third party that the apparent contract is made only to deceive the heirs. The parties agree that the apparent transaction made for the purpose of abducting property from inheritance will not have any effect or result among themselves. This agreement can be verbal or written. ,
Purpose of deceiving third parties (heirs): If the parties (inheritor and third party) do not have a purpose of deceiving the heirs, a case of abduction from the inheritance cannot be filed. ,
Confidential contract: It is the contract that reflects the real will of the legator and is hidden behind the apparent transaction. Confidential contract (forgiveness) is valid as a rule since it is in accordance with the real will of the parties. Here, it is important whether the confidential contract is subject to the form condition. Confidential transaction is not dependent on form in immovables and movable properties without title deed. However, in the title deed immovables, it is invalid because it is subject to the official form condition and this form is not followed in the ‘confidential contract’.
He stated that any heir whose right to inheritance is violated, whether he is a hidden shareholder or not, can sue and prove the collusion with all kinds of evidence. Legal heirs, appointed heirs or adoptions can also file this lawsuit. However, those who reject the inheritance, waive their right to inheritance and are removed from the inheritance cannot file this lawsuit.
Each of the heirs can open this case alone. The fact that the estate is in partnership does not prevent this and each heir can file a Deed Cancellation and Registration Case in proportion to his or her share without the consent of the others. However, if the heir does not want the immovable to return to the estate, not at the rate of his own share, he has to get the consent of the other heirs out of the case or to continue the case with the representative.
The case of muris collusion can be opened after the death of the legator. The lawsuit is not subject to statute of limitations or any time limit.
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