T.C. THE DECISION OF THE SUPREME COURT
Date of Decision: 08.03.2016
CASE OF CANCELLATION OF THE CERTIFICATE OF INHERITANCE – IF THERE IS REAL ESTATE BELONGING TO THE DECEASED , THE TITLE REGISTER AND THE BASIS DOCUMENTS SHOULD BE BROUGHT AND IT SHOULD BE DETERMINED WHO THE DECEASED HEIRS REALLY ARE – VIOLATION OF THE PROVISION
SUMMARY: if you are immovable deceased of the deed and the documents record the basis of the evidence brought down from the side and asked with all the paternity deceased between litigants, whether you are deceased who are the heirs of the reality of a decision should be made according to the result duraksamasiz and determination when the denial of unprecedented decision into the case, therefore, the corruption of provision had. It has been decided that the provision will be overturned.
(4721 Pp. K. m. 30)
The case and the verdict: plaintiff against the defendant with the petition by the attorney on request revocation of the certificate of inheritance issued on 14.12.2010 day at the end of the hearing; the case given for the rejection of 10.07.2013-time provision Yargitayca examination requested by the plaintiffs attorney, but in time, apparently decided upon the adoption of the petition of Appeal has been resolved by examining all the papers in the file and:
The case concerns the cancellation of the certificate of inheritance and the request to issue a new certificate of inheritance.
Acting plaintiffs…. 1963/373 of the Court of First Instance, which was taken by the defendant on the basis of the certificate of inheritance No. 250 of the Main Decision …. 2009/246 of the Magistrate’s Court has requested the issuance of a new certificate of inheritance of deceased … with the cancellation of the certificate of inheritance of Decision No. 1285 based on Decision 2009/246.
The defendant has defended the dismissal of the case.
According to the court’s response dated 30.05.2013 from the General Directorate of Population and Citizenship Affairs, 1259 people were born in the household….. although it has been established that his daughter, born in 1308, was registered with ….it was decided to dismiss the case on the grounds that there were no records of Yaşar’s mother … who was reported to be his brother, no connection could be established with Yaşar, and no records could be found about Yaşar.
The decision was appealed by the deputy plaintiffs.
Healthy and determination to reach a conclusion the evidence in one case of the parties that will affect the outcome of the case and asked to be shown the complete collection of all evidence, with the necessary documents to be brought, then provision must be given according to the result after evaluating all of the evidence collected. Besides, prompt issuance of Certificate of the inheritance is subject to judgment filed with uncontested because in cases like this, ex-officio to apply the principle of research, that can be opened by the heirs of the plaintiff in such cases the only heir he is, in other words, the legator have to prove paternity with itself between the other whether you are the heir, and the share of inheritance that would be determined by the court ex officio, it is also without doubt.
On the other hand, Article 30 of the Turkish Civil Code No. 4721. in the article; It is stated that birth and death can be proved by all kinds of evidence, first of all by records in the population register, if there are no records in the population register or if it is understood that the found record is not accurate, the real situation can be proved by all kinds of evidence.
In the concrete case, it is undoubtedly necessary to determine the population records and addresses of the deceased’s and his heirs and to use all the means to obtain this information. However, the court did not investigate the population registration information and address of the deceased’s by bringing the deed records and the underlying documents, the contract table of the land registry owned by the deceased’s , and these issues were not asked by the land registry office. deceased of the immovable if the basis of documents and record the deed, and asked all the evidence brought down from the side with the paternity deceased between litigants, whether you are deceased who are the heirs of the reality of a decision should be made according to the result duraksamasiz and determination when the denial of unprecedented decision into the case, therefore, the corruption of provision had.
Conclusion: For the reason described above, it was decided unanimously on 08.03.2016 that the decision to overturn the decision by accepting the appeals of the plaintiffs’ attorney and to return the money deposited in advance to the depositor upon request would be overturned.