Supreme Court of the Republic of Turkey
14. Law Office
Basis: 2015/12937
Decision: 2016/2555
Decision Date: 01.03.2016
REQUEST FOR ISSUING A CERTIFICATE OF HEIRING – THE POPULATION REGISTRATION INFORMATION AND ADDRESS WAS NOT INVESTIGATED, THESE ISSUES WERE NOT ASKED FROM THE LAND REGISTRY DIRECTORATE – THE PROVISION WAS BROUGHT
ABSTRACT: There is no doubt that all means should be used to determine the identity records and addresses of the deceased and his heirs, and to obtain this information. However, the court brought the land registry records and supporting documents, the contract table regarding the immovable owned by 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 Directorate. If there is an immovable belonging to the testator, the title deed registration and the supporting documents, as well as the population records showing the lower and upper lineages of the alleged brother of the testator, should be brought and a judgment should be established according to the result.
Case and Decision: At the end of the hearing held upon the request of the plaintiff’s attorney to give a certificate of inheritance with the petition submitted on 25.03.2015; After the appellant’s attorney requested that the judgment dated 10.07.2015 regarding the rejection of the case be examined by the Court of Cassation, and the appeal petition, which was understood to be in time, was accepted, the file and all the papers in it were examined and the necessary was considered:
The case is about the request for the certificate of inheritance.
The plaintiff’s attorney demanded and sued that the testator… died on 10.03.1963, single and childless, that he was the grandson of the deceased’s brother…
As the inheritors of the deceased, the siblings of the deceased….,…., …., .. and … stayed… According to the pre-1955 registration records (death, marriage, divorce) that the District Population Directorate had a fire before 1955, the records were created in 1956 with terrestrial writing. ..etc) and the brothers of the deceased…,…. and….’s population records could not be reached, and even though the heirs of….. could be identified from the witness statements, it was understood that they did not have any information about the death of … and …. as single and childless, therefore…. ve…
The judgment was appealed by the plaintiff’s attorney.
Article 30 of the Turkish Civil Code No. 4721 states that birth and death can be proven with the records in the population registry, and if there is no record in the population registry or if it is understood that the record found is not correct, the real situation can be proven with all kinds of evidence. In our law, the principle of preparation by the parties is valid in cases subject to contentious jurisdiction, and the judge is bound by the demands of the parties. The judge has to make a decision based on the facts claimed by the parties making the request and the evidence they put forward. In cases subject to non-contested jurisdiction, the principle of ex officio investigation is dominant. Decisions rendered in lawsuits filed without opposition and subject to uncontested jurisdiction do not constitute a final judgment, and these decisions may be changed or eliminated as a result of an annulment lawsuit.
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 land registry records and supporting documents, the contract table regarding the immovable owned by 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 Directorate. If there is an immovable belonging to the testator, the title deed registration and the supporting documents, as well as the population records showing the lower and upper lineages of the alleged brother of the testator, should be brought and a judgment should be established according to the result.
Conclusion: For the reasons explained above, it was unanimously decided on 01.03.2016 that the appellant’s objections be accepted and the verdict was OVERFINED, and the fee paid in advance would be returned to the depositor upon request.
