COURT OF FIRST INSTANCE
The plaintiffs are : 1-
2-
3-
Attorneys : Av
Defendants : 1-
: 2-
: 3-
CASE : Cancellation of title deed due to unjust enrichment.
FEE BASIS
VALUE : ……… YTL
EXPLANATIONS
1- My clients are the shareholders of the company operating under the name of …….. Company, of which the defendant is also a shareholder, in proportion to their shares (………. 32.5%, ………. 32.5%, ……….. 27.5%, …….., 7.5%).
2- After the death of the deceased …….., …………, who left the inheritance, the shares of the company were re-determined as above.
3- My clients …………. and ……….. have been actively engaged in trade until their current age, especially my client ……….. has maintained a 25-year commercial life until today, especially in ……….., it operated as a store and as a result of the growth of its commercial life, it was incorporated, and in …….. (………. registration date) ……….. Company (with the registration date of ).
4- The deceased ……… was working as a company manager in the said company before ……….., the date of his death, and his share rate in the company is 10%.
5- The deceased’s commercial life, which the deceased had done on a small scale in the past years, gained experience over many years, especially his eldest son …………., and they established the company together, the deceased himself was fully engaged in the payments, purchase of goods, orders, collections and administrative affairs of the company, and the more active activities such as shipment of goods, marketing of goods, and procurement of space were undertaken by the sons of the deceased, my clients ……….. and ………….
6- Towards the end of the year …………., ……….., who left the inheritance, due to the emerging ailments and in order not to cause a dispute between the siblings in the future due to inheritance and not to break the ties of family members after him, in order not to victimise his daughter ……….., who is a housewife in order not to victimise her daughter, housewife , in order not to cause any dispute between the siblings due to the illnesses that arose and in order not to cause any dispute between the siblings due to the inheritance and in order not to break the ties of the family members after her and in order not to cause any dispute between the siblings due to the illnesses that arose and in order not to cause any dispute between the siblings due to the inheritance in the future and in order not to break the ties of the family members after her and in order not to cause any dispute between the siblings in the future and in order not to cause any dispute between the siblings due to the inheritance.
Although there are witnesses that we will mention in the context of the presentation of evidence for the real estate in question, in particular, ……………, who is still engaged in the ………… business, who mediated the purchase of the real estate, and ………….., who is still living at …………….., from whom the real estate was purchased directly, are witnesses.
As we have explained, the defendant is a housewife who has not worked in any sector throughout her life. She currently has 3 children. Her husband, on the other hand, has worked as a salesperson in different workplaces in the furniture sector, and has been unemployed by leaving the workplaces where he worked most of the time. He even attempted to run a business independently from time to time, but he closed his business as a result of his bankruptcy due to his failures in commercial life. When the total insurance premium records of his wife’s 11 years of married life are analysed, insurance premiums were paid to cover only 3-4 years. During the rest of the unemployment period, which embraced many years, he lived on the rents obtained from the real estate left to him as a share of inheritance.
7- During the period, due to the fact that the defendant was a housewife and her husband was unemployed most of the time and could not even pay the SSK premiums, my client …………….. contributed to the payment of the debts of the plaintiff’s husband in small scales, and even in order to secure himself in the future, the defendant personally applied to my client ………… and suggested “Brother, I have no security, show me as SSK or Bağ-kur in your company, and I will pay with my rental income if necessary”. and his father, the deceased …………, with their mutual acceptance, made the defendant a symbolic shareholder in the company, although he did not actually and legally contribute to the company with any thought, just to secure the defendant. The aim was to pay the SSK premiums of the defendant and in this way to provide a guarantee to the defendant.
Conclusion
As explained above; to summarise; due to the ailments of the deceased …………, who left the inheritance, which started a few years ago, in addition to the labour that my defendant clients …………. and ……….. have given to the company, as well as the labour they have given in the formation of their assets, in order not to waste the labour they have given in the formation of their assets, and in order to prevent the daughter plaintiff ………….. from falling into a dispute with her siblings in the future, as can be understood from the title deed record we have presented in the annex, which is impossible for her husband, who is a housewife and a salesperson in furniture stores, to buy by reaching an agreement with her daughter and children, ………. . on the date of my clients’ father, the deceased ……….. purchased a two-storey building in need of repair in a ready-to-use condition, and then this building was delivered directly to the plaintiff ………….. as if it was purchased from someone else by going to the title deed with the special interest and effort of my clients ………… and his father, the deceased ………, with the special interest and effort of my clients ………… and his father, the deceased ………….., with the special interest and effort of my clients ………… and his father, the deceased ………, with the special interest and effort of my clients ………… and his father, the deceased ………, with the special interest and effort of my clients ………… and his father, the deceased ………, with the special interest and effort of my clients ………… and his father, the deceased ………, with the special interest and effort of my clients ………… and his father, the deceased ……….
8- As explained, it is contrary to the ordinary flow of life that the defendant’s wife, who is a housewife and works as a salesperson from time to time in some furniture stores, can purchase such a real estate, since they do not have a flow of money through inheritance or a savings documenting this. Moreover, all expenditures related to the renovation, construction and repair of the real estate in question and the construction of the upper floors were financed from the company’s own resources. 37 documents showing the related expenditures are attached hereto.
9- The father of my deceased clients, ……….., who left an inheritance, essentially preferred this way in order to prevent his children from experiencing difficulties in inheritance sharing in a possible situation against each other in the future, especially in order not to waste the labour of his sons and their intensive contributions to the company, and within the framework of tradition and custom, he purchased the real estate in question in a way that would provide him with an income while he was alive and made the title deed registration in the name of his daughter by purchasing it directly from the property owner as an inheritance share to the defendant.
In this framework, the plaintiff ……….. ………. of the Civil Court of Peace In the lawsuit for the elimination of the partnership (izale-i şüyu) registered on the basis of of the Civil Court of Peace, the plaintiff has concealed this situation, while a real estate, which was created with the lifelong intensive labour and efforts of my clients with the income of the company and financed from the assets of the company and which has a great return with rental income, and in this context, in the face of the fact that it was given to him by the deceased as a share of inheritance, it is impossible for him to take the place deeded to him in this context, he unfortunately concealed this issue, and this time he tried to demand a share of the real estate left behind by the heir again.
10- While this is the real situation, the plaintiff’s unjust acquisition (unjust enrichment) through unjust enrichment, as well as the existence of the immovable property given to him as a share of the inheritance in the deceased’s health; Although the plaintiff has no financial contribution to the company and because she is a housewife, in order to provide her brother, my client …………, with a social security in the future (with Bağ-Kur or SSK), both my client ……….. and the contributions of his father, who left him an inheritance, and insisted that this should not be withheld from him, especially as a result of the fact that my client …………….. gave him a symbolic share (5%) in the company in honour of his father, the deceased ……….., and this share was given solely for the purpose of paying the Bağ-Kur premiums, and although he undertook to pay these premiums, he did not pay them, however, one of the clients …………. paid these premiums regularly to the social institution to which the plaintiff was affiliated. The documents regarding the payment of the plaintiff’s Bağ-Kur premiums by my client …………. are attached hereto
11- Although the defendant’s inheritance share was conditionally given to him as an inheritance share with the contribution of the company’s money and the approval of his other children in the health of the inheritor …………., after 7 years, this time he filed lawsuits against my clients within the framework of the elimination of the partnership in bad faith.
As it can be understood from the title deed record we have attached, the defendant has rented out the two shops and 4 flats on the building since ………., and the rental fees collected for 1 year in total …….. Considering that the defendant has been renting since … year, the defendant has also rented out ……….. TL, causing the defendant to be enriched without any reason.
When it is taken into consideration that the defendant has owned the property in the title deed since …… and has been renting out the places in this property and earning an income above the standard of living, it will be automatically understood that it is impossible for them to buy this real estate, considering that he has never worked and his wife works from time to time.
The defendant has filed a lawsuit against my clients;
.. The case numbered ……. of the Civil Court of Peace,
.. The case numbered ……. of the Civil Court of Peace,
.. .. … has victimised my clients due to the lawsuits of the Civil Court of Peace, within this framework, it is fixed that the real estate, which he has been renting out for 7 years and which he has been in his possession for 7 years with the approval and contribution of my clients, has been taken by the financial resources of the company that my clients are now the owners of, This issue was concealed by the defendant, although he did not have a share of inheritance, this issue led to unjust enrichment of the defendant due to the fact that it led to an increase in the real estate assets given due to the real estate given to the defendant as a share of inheritance of the deceased conditionally by concealing this issue in the lawsuits he filed. He concealed and ignored this issue in other lawsuits he filed. However, since the defendant’s inheritance share was conditionally given to him under the name of inheritance share and conditionally (real estate) to realise his whole life by the deceased …………….., the father of my clients ………. and ………., the husband of my other client ………., the place that is now in his ownership should be evaluated as unjust enrichment due to the fact that the defendant had received the inheritance share before, but asked for an inheritance share again;
As it is known by your court;
In the context of clarifying Article 18 of the Code of Obligations, which is generally regulated under the title of “interpretation of contracts and collusion”, we present the following Court of Cassation case law for the Court’s appreciation and evaluation.
“…It should be noted immediately that a healthy, fair and correct resolution of such disputes depends on the real aspect of the assignment made to the defendant, in other words, the real will and purpose of the heir, in a way that leaves no room for doubt. Since it is generally difficult to determine and clarify the real will and purpose, which is an internal problem and which is hidden, it is of great importance that the evidence in this direction is not only collected completely, but also evaluated together and correctly. For this purpose, the customs and traditions of the country and the region, social tendencies, the ordinary course of events, whether the heir has a just and reasonable reason for making the contract, whether the defendant has the purchasing power, the difference between the sales price and the actual value on the date of the contract, the human relationship between the parties and the heir, etc. (1st HD. 6.2.1997 dated 811 E- 1603 K.), (Source: Turkish Code of Obligations, General Provisions, Doctrine, Court of Cassation Decisions, Volume 1, Mustafa Reşit Karaaslan, Honorary President of the 13th Civil Chamber of the Court of Cassation, p. 228, Beta Publications, January 2003 Istanbul)
In the context of the interpretation and evaluation of the provisions of ……………., we also present the following explanatory information to your Court’s appreciation and evaluation.
“As a rule, the gains made by the heir to his legal heir in order for him to have a job or to be able to do his profession, to give foundation capital, for example; opening a store, restaurant, office, office, office for his son, daughter or other legal heirs, establishing a factory, buying machinery and tools for the opened workplaces are subject to equalisation.” (Açıklamalı İçtihatlı, Inheritance Tenkis and Muvazaa -Danışık- Davaları, Ali İhsan Özuğur, President of the 2nd Civil Chamber of the Court of Cassation, p. 246, Turhan Kitabevi, Ankara 2005)
Likewise, the following Court of Cassation decision fully and completely supports this opinion and view.
LEGAL GROUNDS :
RESPONSE PERIOD :
Conclusion and Request;
Since the title deed belonging to the named defendant was purchased with the income of the company and registered on the defendant’s future inheritance share; Since the defendant has filed a lawsuit against my clients again, the real estate in his ownership should be accepted as unjust enrichment due to the collusive transaction made within the framework of the provisions regulated in the article …………, (provided that we reserve our right to sue for all rental fees received from the date of registration of the real estate on the defendant until today)
Firstly
a- Regarding the unfair claims made by the defendant against my clients by concealing the truth in a way that is not in accordance with right and justice, due to the fact that the real estate with a material value of ……… TL for today was left to him as a share of inheritance in the health of the deceased who left the inheritance, …………., ………….. located within the boundaries of ………., which is determined as ……… house on the Paftas, …………., …………., ………….., …………., …………. and …………… volume, ……… registration date, ……… row number ……… (Courtyard cavernous house) real estate; Based on the provisions of “unjust enrichment” regulated in ………… and the following articles, the cancellation of the title deed records of the real estate registered to him in this way in a “collusive” manner and its inclusion in the inheritance or, in our petition, the real estate registered on the defendant, the real estate registered on the defendant, under the title of “equalisation in inheritance” of the Turkish Civil Code … ………… based on the provisions of the articles, the cancellation of the title deeds of the real estate registered in the name of the defendant and the registration of the title deed by including the plaintiff and the defendants in the inheritance in proportion to their shares,
b- In order to prevent the transfer of the existing immovable property to others and to prevent my clients from suffering any future rights grievance, a precautionary injunction shall be placed on the immovable property until the end of the lawsuit.
c- I request that the defendant be ordered to collect the attorney’s fee and the costs of the proceedings.
I hereby submit my request. Sincerely yours,
Defendants
Deputy
Adds:
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