HOW SHOULD HEIRS FILE A DEED CANCELLATION CASE DUE TO INCAPACITY?
As it is known; joint ownership is the situation where persons who have a partnership bond between them in accordance with the law or the contracts specified in the law, jointly own a property or right due to this partnership.
Regulated under Article 701 of the Turkish Civil Code No. 4721, this type of ownership (partnership) does not have a legal personality, nor does each of the partners have a direct right on the property. The property belongs to all of the partners as a whole. In other words, until the partnership is liquidated, one of the partners does not have separate ownership of property or rights, but the partnership is the right owner. In the aforementioned type of ownership, the owners are partners, not shareholders, since their ownership shares are not separated. This rule is recognised in Article 701 (… The ownership of those who jointly own the goods due to the community formed in accordance with the law and the agreements stipulated in the law is joint ownership. In joint ownership, the partners do not have determined shares, and the right of each of them is common to all of the goods entering into the partnership.”). As a result of this characteristic of co-ownership, there is a compulsory litigation friendship between the partners. If the law or the agreement establishing the property in partnership does not specify who is authorised to act on behalf of the partnership, it is obligatory for the partners (associates) to take unanimous decisions and act together in all transactions other than the right to request the liquidation of the partnership. Article 702/2 of the TCC provides a clear provision in this respect. However, this rule has been partially softened in judicial practice and it has been accepted that a shareholder may file a lawsuit alone, however, in order to continue the lawsuit, the consent (approval) of the other shareholders must be obtained or the lawsuit must be continued through the representative to be appointed to the inheritance company. (Decision of Unification of Case Law No. 1982/3-2 dated 11.10.1982) As a matter of fact, this view has been adopted in the scientific field. In the concrete case, it is understood that the plaintiffs filed the present lawsuit with the request for cancellation and registration of the title deed in proportion to their inheritance shares, and there are no heirs outside the lawsuit. It is indisputable that in the lawsuit filed with the claim of legal incompetence, all heirs representing the estate should act together and file the lawsuit or one of the heirs should file the lawsuit with the request of return to the estate. (Article 640 of the Civil Code) Therefore, since it is not possible to hear the lawsuit filed by the plaintiffs based on the claim of legal incompetence, it is not correct to decide to accept the lawsuit while the court should decide to dismiss the lawsuit (Court of Cassation 1st Civil Chamber – Decision: 2015/8078).
The main and consolidated cases are related to the title deed cancellation and registration request. The court decided to dismiss the lawsuit on the grounds that the heir was competent on the date of transfer and the fraud claim could not be proven. According to the date of death of the heir, the inheritance is subject to joint ownership. It is fixed with the scope of the file that there are other heirs other than the plaintiff. Apart from the cases such as muris collusion and prevention of seizure, which are tortious acts arising from the ownership against the estate, incompetence, abuse of proxy duty, error-fraud-gabin, etc. It is undisputed that all heirs representing the estate should act together and file the lawsuit together, and if one of the heirs files a lawsuit in the form of return to the estate, the consent of all heirs should be ensured in the lawsuit, otherwise the estate should be represented and executed in the lawsuit through the representative to be appointed (T.M.K. Article 640). In the concrete case, it cannot be said that the lawsuit for registration filed by the plaintiff against the non-heir based on the legal grounds of incompetence and fraud cannot be heard. On the other hand, since the lawsuit was not filed on behalf of the estate, the continuation of the proceedings by appointing a representative for the estate does not make it possible to hear the lawsuit filed in proportion to the share (Court of Cassation 1st Civil Chamber – Decision: 2020/3302).
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