1. Law Department 2014/3824 B. , 2015/12948 D.
“Case Law Text”
COURT: SALIHLI 2. THE COURT OF FIRST INSTANCE
Date: 05/11/2013
Number: 2011/309-2013/808
Cancellation decertification, if not, at the end of the case of tenkis, the decision made by the Local Court regarding the rejection of the original case due to animosity, the decision made by the attorney of the plaintiffs of the combined case and the lawyer of the defendant during the legal period, while the hearing was appealed to the willing, the acting lawyer who appealed on Tuesday 10.11.2015, which was determined as the day of the hearing, G….. S……..with other appellant plaintiffs B.. He.. et al. acting Attorney E……. G….. V.. M.. Izmir Regional Directorate Deputy lawyer S…….. E…….. G…….. the plaintiffs, who appealed despite the invitation notice, were a.. G.. et al. the acting lawyer and other plaintiff nobles did not come, in their absence, the hearing began, the oral statements of the deputies who came after the decision was made to accept the appeal petition, which is understood to have been issued and registered during the period, were heard, the hearing was reported to be over, the work was left to the decision. Bilahare examination judge……………the report, edited by l, was read and received. Dossier examined and considered:
-DECISION-
The original and combined lawsuit relates to requests for tenkis if the title deed is canceled and registration is not possible.
In the original case, the plaintiffs, the heirs, Sh.. K..’s Salihli Sart C…… K……….. Their shares in the limited liability company, S…………… Share Transfer Agreement dated 11.01.2011 organized handed to the relatives of the defendant, the assignment collusive estate for sale and is Deceased you don’t need to sell goods, noting the absence of the defendant’s purchasing power, Deceased collusion with the cancellation of the transfer and assignment of the process because of the aforementioned shares, in proportion to their shares of the inheritance tenkis registration is not possible if you are asked to decide.
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In the combined case, the plaintiffs repeated the same claims, on the other hand, that the shares of the company were not transferred in accordance with the legal form, 520 of the Turkish Commercial Code. 18 of the Code of Obligations. in accordance with the provision of the article, they claimed that the transfer of shares of the company should be canceled, because of Deceased collusion, they requested that the cancellation of shares of the company registered on behalf of the defendant be registered in the proportion of their shares, if not possible, a decision on criticism, during the trial, the shares of the company subject to the lawsuit be decided by Deceased Sh.. K..root inheritance, which is the wife of H…… S……. K………’they reported that it belonged to a, that with the will he made, the shares left only the right to usufruct to his wife, and that the transfer of shares to the defendant was muwazaali and superstitious.
Basic administration of intervening foundations, root Deceased H….. S…… K……….in a will dated 17.03.1966, which he made, he had the purpose of establishing a foundation, his wife Sh on the assets of Deceased ‘s .. K..claiming that he has the right to usufruct until he dies, but he does not have the right to ownership, with his death, the shares of the company belong to Terek, the sale to the defendant is an absolute superstition, with the cancellation of the shares of the company on behalf of the defendant Deceased H…… S……………………… K………’he asked for a decision to return flour to Terek.
The defendant stated that the shares of the company are securities and that the cancellation of the shares based on Deceased collusion cannot be requested.. K..’s due to the lack of heirs has the rights to sue if the share sale is real, and learned to work in the company for a long time and jobs, school, but after finishing the spa today from the company and started doing teaching to work for the company that is becoming, to know the status mirasbirakan sell their shares when he decided to offer himself has made the allegations that have been made over the nominal value of share sales are not true, noting that in the cases involved, and defended the dismissal of the original lawsuit.
By the court, the ownership of the company share transferred to the defendant is Deceased S.. K..not belonging to the root Deceased H…… S…… K…….it belongs to, P.. K..on his death, the will of 17.03.1966 made by Root Deceased should be acted in accordance with the case for the cancellation of the Will was rejected, so sh.. K..’s lack of authority in terms of the transfer of company shares, sales process with absolute nullity for the reason that they are false due to the animosity of actual case, combined with a denial of the merits of the case, the original case involved the administration’s contention with the foundations of the subject of the acceptance of H shares…… S……. K……… the decision was made to return terekesine, the provision was appealed only by the attorney of the plaintiffs and the attorney of the defendant in the actual case.
From the contents of the file and the collected evidence; born in 1320, kokmirasbrakan H……. S….. N…..with his childless death on 11.08.1972, his wife s.. K.. with brother S……. Y…….’s left s.. K..24.10.1972 date, 1972/1665 basis, 1972/1465 decision of the Salihli Court of First Instance held on the application of the declaration of succession; root Deceased H….. 4 Shares of Sabri’s inheritance are accepted, with two dry properties and ¼ full ownership…. Y……….’a, 2/4 with the usufruct right of ownership, ¼ of ownership.. K..’where it is decided that it has an affiliation, on the other hand; H………. In the determination that Sabri’s savings on establishing the foundation in his will made on March 17, 1966 were invalid, the case filed by the heir Seher stars on 08.01.1973 was rejected by the decision of the Salihli Civil Court of First Instance dated 19.03.1974, 1973/53, 1974/205, the heir Sh.. K..as a result of the request made by Salihli Magistrate Court 04.03.1977 date, 1972/150 Esas, 1973/97-2 D. Business decision with the decision of; ”S…….. S……. O………….. In accordance with the will of the shares belonging to the guest in the Hot Springs, the wife of savings and usufruct Sh.. K..” it was decided that it belonged to, that it should be written to the company mentioned in this regard”, again the heir.. K..”UN” Deceased wife H…….. S……. K………’in his will dated 17.03.1966, he bequeathed that he could benefit from his assets until he died,
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the case for the cancellation of the will filed by the other heir was rejected, despite this, they registered 8 pieces of real estate left over from Deceased in the names of the defendant heirs”, claiming that the deed was canceled and the decision to delay on behalf of Deceased was made as a result of the case filed on 22.11.2001 in the first decision of the Supreme Court 2. 06.06.2002 date and 2002/6282 basis of the legal department, 2002/7658 with the declaration ” he wanted to establish a foundation to cover all of the will of the heir dated 1966, appointed a tenfiz officer of the will. As the case concerns the administration of the foundations directly, the plaintiff’s right to usufruct will be raised after the foundation is established. In that case, the case should be directed to the administration of foundations, again the will of the officers of enforcement Salihli Mufti M…….. N…………. S……. Cami Y……….. and T…….. Association President S………..n G……..(decision to merge Case Law No. 16/25 of 17.12.1955). On the grounds of corruption, the plaintiff’s administration of foundations, P……. H…… G………, M……. N……. and Salihli Mufti K………. He………. repeating the same claims against him on 07.10.2003, the subject of the lawsuit is the registration of 8 pieces of real estate on behalf of the foundation administration in accordance with the will, again on real estate in accordance with the will.. K.. Salihli 2 as a result of the trial in which the case filed by the willingness to decide the establishment of the right to usufruct in his favor was combined with the case file that was re-recorded on the violation. 25.03.2004 2003/270 court date and is based on the decision 2004/215; the main and coupled with acceptance of the case, a subject of debate in succession, with the cancellation of the registration of immovable 8 piece istirake H Deceased ………… S……………. It was decided to register guest shares again on behalf of Deceased , the said decision was appealed by the defendants ‘foundations administration, which merged with the defendants’ attorney, but the appeals were not considered in place and were finalized on 21.09.2005, Deceased Sh.. K..’s S……… S……….. O……. N………. 32 shares in Limited liability company, Salihli 3. Born in 1928, which the notary public transferred by selling to the defendant with the ”Limited Company Share Transfer Agreement” dated 11.01.2011.. K..with the death of 01.02.2011, the plaintiffs of the main case, the defendant and his heirs out of the case remain, the root Deceased Hussein Sabri guest’s heir, S……………………….with his death on 17.11.1988, it is understood that the plaintiffs of the case, who were also left behind, remained as heirs.
As is known; Turkish Law No. 743 74. article ” The Foundation is established by official promissory note or will, and the residence of the foundation is acquired by registration in the register held before the court of First Instance. The court ruled that the registration matter V.. M..resen notifies you to register in the central register.”The same principles are protected in the Turkish Civil Code No. 4721, adopted on 22.11.2001, and the law 102. in its article, ” the will to establish a foundation is explained by official promissory notes or savings related to death. The foundation becomes a legal entity by registering in the register held before the settlement court. The establishment of the foundation by official promissory note through a representative depends on the fact that the authority of representation is granted by a document arranged by a notary and that the goods and rights to be specific for the purpose of the foundation are determined in this document. Application to the court, if the official promissory note is issued by the foundation; if the foundation is based on savings related to death, on the notification of the interested parties or the magistrate who opened the will, or V.. M..NCE is made in resen. The court referred to takes the necessary measures for the protection of property and rights.”his decision has been made.
As for the concrete event, as indicated in the above-mentioned decisions, kok mirasbrakan Hussein Sabri guest has revealed his will to establish a foundation in a WiLL Made on March 17, 1966, although Turkish Law No. 743 is the 74th civilization. article 102 of the Turkish Civil Code No. 4721, which entered into force later. according to the provision of the article, since there is no existence of a foundation that has acquired a legal entity by registering in the relevant register, the administration of the foundations does not have the right and authority to sue in terms of the companies that are the subject of dispute.
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As for the appeals of the combined case;
It should be noted immediately that the decision to combine case law 1.4.1974 and 1/2 is not possible in the transfer of company shares that are the assignment of personal rights.
However, from the contents of the file and the records taken between the documents; the root inheritance of the shares of the company that were the subject of dispute and were transferred to the defendant H……………………… Dec……………………… K………’it is observed that a belongs to.
So, s.. K..it is clear that he has the right and authority to save on company shares in the proportion of the inheritance share, and that the transfer of shares to the defendant’s relative, other than the inheritance share, is corrupt.
In this case, the case filed by the administration of Foundations was dismissed from the absence of adjectives, and in terms of the combined case, Deceased Sh.. K..from the share of the company transferred to the defendant.. K..it is not correct that the decision was made in writing with a misleading evaluation, while the decision should be made on behalf of the plaintiffs of the case combined with the cancellation of the part of the inheritance.
In the combined case, the plaintiffs ‘ attorney and the defendant’s attorney have Appeals for the specified reasons. For the reasons described by the adoption of the provision (provisional 3 of the law No. 6100.article 428 of Humk No. 1086.Article 14 of the Attorney’s fee tariff, which entered into force on 31.12.2014, to be broken in accordance with the article, to return the advance fee received to the appellant. 1.100.00 for the attorneys of the appellant parties who come in accordance with article.TL. the hearing was decided by a unanimous vote on 10.11.2015 that the attorney’s fee should be mutually received and given to each other.
– VOTE AGAINST-
The case is related to the cancellation of the title and the request for tenkis if there is no registration.
In the actual case, the plaintiffs are the ones who left the inheritance.. K..’s S Salihli………….. L…………. His shares in the company, Salihli 3. 11.01.2011 the company held in the notary public share transfer agreement transferred to the defendant, the transfer of the inheritance for the purpose of kidnapping property and collusion claiming that Deceased’s collusion due to the cancellation of the share transfer and assignment transaction and the registration of the share of the inheritance shares, if not possible, they asked for a decision on tenkise.
The plaintiffs in the combined lawsuit claim that the shares of the company are subject to Article 520 of the Turkish Commercial Code. 18 of the Code of Obligations. in accordance with the article, they also requested that the transfer is collusion , the company shares on behalf of the defendant be cancelled at the rate of inheritance shares and the registration in their names, if not, be decided on tenkise, during the trial, the root of the shares subject to the lawsuit is mirasbrakan H…….. S………. K…… they reported that it belongs to K….. and that only the right of usufruct of shares is left to his wife Shayan, so the transfer of shares is collusioned and superstitious.
The defendant argued that the company’s shares are securities and cannot be subject to Deceased collusion, that the combined plaintiffs are not heirs, so they do not have the right to sue, and that the company’s share sales are actual sales at face value.
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Primary intervention V.. M.. Hussein S legator root………….N………….in a will dated 17.03.1966, he intended to establish a foundation and H……….. S…………… he claimed that he left his wife Sayan the right to usufruct of the guest’s assets until he died, that Sayan did not have ownership rights in the company shares, that the sale of shares was superstitious with absolute butlanla , Hussein Sabri, who inherited the company shares on behalf of the defendant, asked for a decision to return them to the guest Terek.
By the court, due to animosity of the original case, the main rejection of the combined case, with the acceptance of the main intervention case; 11.01.2011 date and 00429 Journal limited company share sale agreement is understood to be superstitious with absolute butlan, to be processed under the will of Deceased H……….. S……… the decision was made to return the guest to Terek, the decision was appealed by the plaintiffs and the defendant in the combined case.
From the contents of the file and the evidence collected, Hussein s, who left the root legacy……………..Upon guest’s childless death on 11.08.1972, his wife Sh.. K.. and his brother, seher, where the star stayed, Sh.. K..with the death of 01.02.2011, the main plaintiffs in the case, the defendant and his heirs out of the case, his brother S………….Y…………… 17.11.1988 in its history, it was determined that the plaintiffs in the case, which were also combined with his death, remained heirs.
The subject of the case is the legacy of Sh.. K..’s, whose wife Hussein Sabri was in the guest Terek………… S………… C………….N………….. L……………S…………I, 32 shares equivalent to 800.00 TL nominal value 40% share Salihli 3. The defendant with the “ limited company Share Transfer Agreement” dated 11.01.2011 of the notary public S.. C..’A is the transfer process.
Conflict, H……….. S…………I inherited the shares of the company located in the guest Terek.. K..’whether it is transferred to a, to whom ownership of the company’s shares belongs, accordingly, whether the sale of shares of the company subject to the lawsuit is legally valid, whether the transaction is collusioned and whether it is a primary intervention V.. M..in the case, whether there is an adjective of the plaintiff party relates to whether the administration of the foundations can request the return of shares to Terek.
Legator Huseyin Sabri, Guest 17.03.1966 dated with a Will; (1) mithatpasa Caddesi No. 33 is the owner Salihli home and outbuildings, except for movable goods from Kabul after death exists, including a car, Orhaniye street 19/A. two-story store, S……….Shares in spas, E……. E……….. 10.000,00 Turkish Lira shares in the company, with the purpose and purpose shown in the will, allocated in the Office of the conditions determined, P…….N…….. by his name, m.K m.457 based on the salahiye he mentioned, which he bequeathed triumphantly after his death, (Article-2) all of the goods of his wife.. K.. by saving until death, managing these goods, working on a salary…………. G……..’member, (Article-3) co.. K.. (Article-5) if he marries another man or his illegitimate state is determined by a judge’s decision, he will be removed from the house by giving some household items, if he does not marry another man.. K..’Article-4) except house No. 33, all emwali real estate and others to benefit from the Qur’an course, imam hatip school and mosque construction and survival works, P……. N…….. (Article-6) to whom money and assistance will be made after his death, (Article-7) the sale of these funds to cars and commercial goods and Sh.. K..after deducting the annual administrative cost of the Sart, the income from the shares in the Spa, the immediate registration and registration of the will in court after his death, the enforcement of the will.K m.According to the provisions of 497, Salihli Mufti, president of the mosque construction and maintenance Association, Mehmet Kahraman and Selahattin Gumus were appointed as tenfiz officers, (Article-8-9) how religious ceremonies and prayers would be performed after his death was determined.
…../……
1972/150 basis of the Salihli Magistrate’s Court, 1972 / 150 decision no……….. S……………..It was determined that guest’s will dated 17.03.1966 was opened.
The root legator H………… S……………….. N…….in the will of 17.03.1966, determining that his savings on establishing a foundation are invalid, the heir S……………. Y…………..the case filed by the Court of First Instance of Salihli, 19.03.1974 date, 1973/53 basis, 1974/205 was rejected and finalized.
04.03.1973 date, 1972 / 150 basis, 1973/97 – 2 different business, with the decision of the Salihli Magistrate’s Court “ S…….. S……. O………..N……….. Hussein S………….i K……….in accordance with the will of the shares belonging to the wife of savings and usufruct Sh.. K..” it has been decided that it belongs to, that it should be written to the company mentioned in this regard.”
P.. K.., the case for the cancellation of the Will resulted in rejection, the usufruct of the property subject to the Will was left to him until he died by the will, but despite the will, part H…….. S…………………………….claiming that 8 pieces of real estate in Terek was provided to the heirs by taking the declaration of succession of the heirs, the first decision made in the case filed with the request for registration on behalf of Huseyin Sabri guest with the cancellation of the land registry, Y…………law department dated 06.06.2002, 2002/6282 basis, 2002/7658 decision no., “ he asked for the establishment of a foundation to cover all of his estate with the will of the bequest dated 1966, and appointed a probate officer. As the case directly concerns the administration of the foundations, the plaintiff’s right to usufruct will be raised after the foundation is established. In that case, the case should be directed to the administration of foundations again the will of tenfiz officers Salihli, Mufti M……. K………… S……… C……….Y……. and Y…….. E……………..B……… and S………….. G………….it required that the evidence of these people be asked and decided according to the result, while the sentence given by incomplete examination was overturned.” on the corruption of the grounds, the administration of foundations, Salihli, Mufti K……. He…….., Selahattin Hilmi silver and M…….. K………… as a result of the trial, the case filed against him with the same claims was combined with the case at hand, Salihli 2. Court of First Instance dated 25.03.2004. 2003/270, with resolution 2004/215; acceptance of the original and combined cases, registration of 8 pieces of real estate subject to the lawsuit, cancellation of the transaction Hussein S… K…………….it was determined that the decision was made to register their shares again on behalf of them, and the decision was finalized on 21.09.2005, passing the supervision of the Supreme Court.
Material facts put forward by the parties, leaving a root legacy H…….. S…….. N………..the content of the will edited by, the contents of the file of the case that was opened and finalized in relation to the Will, and all the evidence are evaluated together; H…….. S……. N…….in accordance with the will of 17.03.1966, he allocated all his assets to the foundation that will bear his name, except for the house 33, and if he lives in the conditions set out in the will, his wife will have the right to use this asset until she dies.. K..’it’s understood he left it to a.
As is known, the Turkish Law No. 743, which was in force on 11.08.1972, when Huseyin Sabri guest, who left the root heritage, died, was 74. article; ” The Foundation is established by official promissory note or will, and the foundation’s residence becomes a legal entity by registration in the register held before the court of First Instance. The court ruled that the registration matter V.. M..resen notifies you to register in the central register.”it was said, 102 of the Turkish Civil Code No. 4721, which brought regulation in the same direction. in its article, ” the will to establish a foundation is explained by official promissory notes or savings related to death……….. Application to the court is made by the foundation if the official promissory note is issued; if the foundation is based on savings related to death, it is resen by the General Directorate of foundations upon the notification of the interested persons or the magistrate who opens the will. The court referred to takes the necessary measures for the protection of property and rights.”the verdict is given.
……/…….
Again; Charter on foundations established in accordance with the provisions of the Turkish Civil Code, 13.08.1991 day, Law No. 2159 1. with 5 different substance. in the article, ” the magistrate who opens the will in the foundations established by the Will, the notary who issues the official bill in the foundations established by the official bill, a sample of the will or the official bill within seven days.. M..ne sends…..an application for the registration of the foundation, if the foundation has not requested registration by the heir in the event of his death within three months or if he has a legal entity from the foundation.. M.. done.”the regulation on foundations established in accordance with the provisions of the Turkish Civil Code, published in the Official Gazette on 25.03.2013 day 28629, in which the provision is included, 3/3. in the article “ in foundations established by Will, the heir of the foundation or the person appointed by the foundation to officially manage the inheritance may request registration. If the application has not been submitted by them within three months from the date of the opening of the will, the application for the registration of the Foundation V.. M.. done.”27.09.2008 date, 27.010 published in the official gazette of the director of foundations 6. “through death-related savings, the foundation may be established to be registered after the death of the foundation. In foundations established in this way, the magistrate sends a sample of the document based on the foundation to the General Directorate within seven days……application to the court upon notification of the interested parties or the magistrate or V.. M..NCE is made in resen.”according to the regulations; in the establishment and registration of foundations established with savings related to death, V.. M.. he is competent and on duty.
In a concrete case, the will dated 17.03.1966 determined the property and rights to be specific for the purpose of the foundation and the foundation’s Foundation was bequeathed to death, the Will was appointed by the officers, the Will was finalized by opening the will, but the property of 8 pieces of real estate specific to the foundation was avenged to the heirs despite the will as a result of the lawsuit filed on 21.09.2005…… S….. K…… he returned to Terek, with this case, the General Directorate of Foundations is aware of the foundation’s Foundation related to death, in accordance with the specified laws, statutes and directorship provisions, V.. M.. since the foundation is authorized to make an official Foundation related to death, it is indisputable that the company shares specific to the foundation are returned to terke and have legal benefit in filing a lawsuit for the protection of the assets of the foundation, so the claimant Involved V.. M..there is no impropriety in the acceptance of nun’s case.
On the other hand, the root legator H…… S…. K…… all assets in Terek, except house 33, are specific to the assets of the foundation to be established by Will, until death, the right to usufruct the goods in Terek is left to the right wife, this situation.. K..’s also accepted, s.. K..as a result of his application as a usufruct holder, Salihli Magistrate’s Court of law dated 04.03.1973, 1972 /150 Esa, 1973/97-2 with the decision of different business no. “ P…. S … S….. N………….H………….. S…………… K…………’wife of savings and usufruct in accordance with the will of shares belonging to a.. K..as the owner of the right to usufruct, where it was decided that it belonged to” Sh.. K..the case filed by Salihli 2 was accepted. Court of First Instance dated 25.03.2004. 2003/270 basis, 2004/215 Decision No.; “8 parts of real estate verasette subsidiary en registration, cancellation of the transaction and re-registration of Huseyin Sabri guest shares ” was decided, for all these reasons; the company shares subject to the lawsuit, the right to use until the death of the right spouse.. K..it is owned by the foundation, and its ownership is specific to the foundation, the shares of the company form a significant part of the assets of the foundation, so it leaves a legacy that does not have ownership rights.. K..considering that there is no legal basis for the transfer of shares of the company made by the defendant on 11.02.2011, the court considered that the transfer transaction is non-existent, there is also no hit in the decision to return the shares of the company to Huseyin Sabri guest Terek for processing under the will.
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As a result, in the will dated 17.03.1966, the foundation foundation connected to death was bequeathed, the shares of the company subject to the lawsuit were specific to the assets of the foundation, the right spouse until he died by the will.. K..’a is granted usufruct right on tereke goods, which makes the transfer of shares.. K..on the other hand, the foundation foundation associated with death and the protection of the assets specific to the foundation, where the transfer of the company’s shares to the defendant is legally absent, so that the company does not have the right to ownership and inheritance on the shares of the company.. M..considering that nun is authorized and authorized, the intervening plaintiff V.. M..I cannot agree with the decision to overturn the majority, as I am of the opinion that the decision to accept the nun’s case is correct, and for these reasons, the court’s decision must be upheld with the rejection of the combined plaintiffs and the defendant’s appeals.
