14. Legal Department 2016/11407 E. , 2019/8453 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
04.09.2013 of Attorney given by the plaintiffs against the defendant with the petition on the day of the deed, the right of preemption resulting from cancellation and place to be decided at the end of the trial, the result of the registration request that it wasn’t requested by the plaintiffs attorney blog 15.12.2015 provision yargitayca Examination given time, but apparently decided upon the adoption of the petition of Appeal has been resolved by examining all the papers in the file and:
Decision
The case concerns the request for cancellation and registration of the title deed arising from the right of pre-purchase.
The plaintiffs attorney, with…, … county, Tasbasi Quarter, parcel No. 5 209 moved premises of the client name of the shareholder, the shares from the defendant immovable 125/2599’e 125/2599 of shares from the defendant’e were sold the right to cancel and deed by announcing that arising from the pre registration is requested.
The defendant’s deputy argued for the rejection of the case by declaring that the period of lowering the rights has passed, as well as that there is a de facto installment on the real estate.
It has been decided by the court that there is no room to make a decision on the merits of the case.
The decision was appealed by the deputy plaintiffs.
732 of the Turkish Civil Code No. 4721 entitled “Legal Right to Preamble-Holder of the Right to Preamble”. the provision “Other stakeholders may exercise the right of pre-emption if a stakeholder in the shared ownership sells his/her share of the immovable property to a third party in whole or in part” is regulated in the article.
In the aforementioned regulation, although no clear definition of the right of pre-emption has been made, the basic principle is freedom of ownership and savings authority, the right of representation of the stakeholder is limited in the pre-emption, but this limitation is limited and it is stipulated that the right of pre-emption can only be used for sale agreements.
There will be no legal right of preemption in the case of the shares that are not subject to a real sale and are not for sale. Since the right of pre-emption must be exercised within the terms of the sale of the share, there is no way for those who have acquired the share in exchange for other than money to act on the basis of fulfilling the same conditions.
Although the guarantee transaction is shown as a sale by the shareholder, if it is argued that it is actually a grant, in other words, if it is claimed that the guarantee is intended by the grant, it is clear that the guarantee claim will not be heard because the defendant who secured the share is a party to the official transaction and no one can withstand his/her consent.
In addition, stakeholder’s share of profit and husband, children or relatives conveyed to if the purpose of the contract of sale or even seemingly related to the law of inheritance, such as in cases where the right of preemption of forgiveness thoughts blog and dominates unused 27.03.1957 1956/12, based on the jurisprudence of the Supreme Court Decision No. 1957/2 is stated in the decision to merge.
In the explanatory justification part of the said decision; “It is necessary to consider whether the point of whether it will occur if it sells to its own child or relative through withholding or other considerations in accordance with the rules of inheritance law. Even if the price that is an element of the sales contract is mentioned in the middle of the sale to such relatives, there is no way to accept it as a free sale. Because the purpose of mümellik is not to take the price of his property here, but perhaps to identify him and replace him due to kinship relations,”the explanation is given.
As can be seen, the use of the term “Heir” alone, which refers to a special legal status, was carefully avoided both in the concluding part of the decision, which is binding, and in the justification part, which is explanatory, and the broader concept of “Relative” was also included. In this case, it is impossible to accept that the decision covers only persons who are direct heirs as of the date of sale.
In the light of the explanations made above, it seems that the Decision to Merge the Case Law No. 1956/12 of 20.03.1957 and Decision No. 1957/2 of 1957 is an exception to the rule that the person who is a party to the contract cannot defend himself or herself in the transaction and prove it with all kinds of evidence. In order for the aforementioned decisionto be implemented, first of all, the sale does not have to be made directly between the heirs as of the date of sale, and the parties to the guarantee must be relatives. Sales between relatives in the form of assignment is made, the case law of the time, the decision to merge this called “Grant or inheritance law” for the purpose of S that is not, in other words, depending on the nature of the dispute between relatives and every assignment that is made concrete in the inheritance law for purposes of the assignment or grant is made, whether yonteminc must be sought with the proof, and the proof in the case that is not feasible with the use of the right of pre-emption, the assignment should be observed.
The General Assembly of the Supreme Court of Cassation on 08/02/2012 and 2011/6-762 Basis, 2012/56, 27/04/2011 day and 2011/6-38 Basis, 2011/225 Decision, 2011/6-164 Basis and 2011/245, as of Dec. 2011/6-164 Basis and 2011/245, the sale of shares should not be made between the direct heirs as of the date of sale, and the parties to the assignment it has been decided that it is enough to be a relative.
As for the concrete case; the defendant was selling shares with a lawsuit against them arising from the defendants to cancel the right to pre deed and the registration date between 20.03.1957 1956/12 has a close relationship since in the first degree, based on the case law of the Supreme Court decision number 1957/2 pursuant to the transaction as shown on the decision to merge each of deed sales have been while in reality, be deemed to have been made for the purpose of the donation and any transfer of the case when the denial decision should be made with written justification for a decision not the case for the purpose of the provision in place because it had the form of unprecedented towards the establishment of, therefore, it was decided to overturn the provision.
CONCLUSION: For the reasons described above, it was decided unanimously on 09.12.2019 that the decision of the plaintiffs’ attorney to OVERTURN the decision by accepting appeals, to return the money deposited in advance to the depositor on request, within 15 days from the notification of the decision, the way to correct the decision will be open.
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