INVESTIGATION OF EVIDENCE IN A DEED CANCELLATION CASE FILED DUE TO INCOMPETENCE
The basis of the land registry cancellation and registration case is the claim that the defendant purchased immovable property from the person who does not have the power of appeal. As stated in Article 15 of the Turkish Civil Code No. 4721, the good faith of the other party does not make the transaction valid, since the transactions of the person who lacks the power of discernment cannot be concluded due to the lack of a valid will, without prejudice to the exceptions specified in the law. This principle is also adopted in the Unification of Jurisprudence Decision of the Court of Cassation dated 11.6.1941 and numbered 4/21.
In this case, it is obligatory to collect all the evidence to be presented by the parties, to obtain explanatory and satisfactory concrete information from the witnesses in this direction, and to bring the doctor’s reports, patient observation (observation) papers, film radiographs, if any, of the person alleged to be incapacitated. In addition, although the ‘vote and opinion’ of the expert is not binding on the judge as stated in Article 282 of the Code of Civil Procedure No. 6100 (CCP), since the absence of the power of appeal depends not only on biological causes such as minority, mental illness, mental weakness, intoxication, but also on psychological factors such as consciousness, cognition and will, the determination of biological and related psychological causes such as mental illness, mental weakness requires special and technical knowledge outside the profession of judge.
Considering that incapacity is related to public order and due to its importance, it should be examined primarily, all evidence to be submitted by the parties in this direction should be collected, if any, medical board reports of the heir, patient observation papers, prescriptions, etc. should be requested, and the whole file should be sent to the 4th Specialised Committee of the Forensic Medicine Institute in accordance with the provisions of Articles 7 and 16 of the Law No. 2659. Specialised Board, obtaining a report on whether the heir was competent on the date of the contract, evaluating the request based on the legal reason of muris collusion if it is determined that the heir was competent, completing the investigation completely, and deciding according to the result to be obtained, while the decision should be made by ignoring the aforementioned issues is contrary to the law. (Court of Cassation 1st Civil Chamber – Decision No: 2015/7013).
WHO CAN FILE A LAWSUIT FOR CANCELLATION OF TITLE DEED DUE TO LACK OF CAPACITY AND HOW?
While party capacity is related to the personalities of the parties to the lawsuit, party status is related to the subjective right subject to the lawsuit. Even if the person nominated as a party in a lawsuit has the capacity of a party, if this person does not actually have the capacity to be a plaintiff or defendant in that lawsuit, a decision cannot be made on the merits of the right subject to the lawsuit. The decision to dismiss the lawsuit due to lack of capacity is not a decision that the lawsuit cannot be heard, but a decision on the merits that determines the lack of party capacity.
Accordingly, it is beyond any doubt that a lawsuit for cancellation and registration of title deed regarding an immovable property can only be filed by the person who has the right of ownership on that immovable property, and whether the party requesting cancellation and registration of title deed is actually the owner of that right should be considered ex officio by the court at every stage of the case.
In the concrete case, the plaintiffs claimed that the assignment made by their father, who was alive on the date of the lawsuit, to the defendant was invalid due to incompetence, and requested the cancellation of the title deed and registration of the immovable property in the name of their father, who was alive on the date of the lawsuit. Since the person who made the assignment and who actually has the right is alive, the right to file any kind of lawsuit based on this assignment belongs exclusively to him.
In such a case, since there is a claim of legal incompetence, it is a legal obligation to appoint a guardian for the restricted real right holder who is alive, and for the guardian to represent him in legal proceedings by obtaining permission from the guardianship authority.
From this point of view, it is undoubted that Mehmet Coşkun, the father of the plaintiffs, is alive as of the date of the lawsuit and has the capacity of a party within the framework of the legal facts explained above; therefore, it is undoubted that only he or the guardian authorised to represent him can file a cancellation and registration lawsuit based on the claim of ownership for the immovable property subject to the lawsuit.
As such, in the present case, the plaintiffs have requested the cancellation and registration of the title deed on behalf of their father, who had the legal capacity of a party on the date of the lawsuit, by showing themselves as a party in violation of the procedure; and it is not possible to eliminate this procedural deficiency, which is a condition of the lawsuit as of the date of the lawsuit, by appointing a representative to the estate, since the father died during the trial.
On the other hand, it is clear that the plaintiffs, who are entitled to the immovable property subject to the lawsuit and who filed the lawsuit on behalf of their father, who was alive as of the date of the lawsuit, do not have the authority to sue the immovable property (right to sue); in other words, they do not have the title of plaintiff.
As such, it is contrary to the procedure and the law for the Local Court to resist the previous decision to accept the case on the merits, while it is necessary to comply with the Special Chamber’s Reversal Decision, which is also adopted by the General Assembly of Civil Chambers and points out that the case should be dismissed. Therefore, the decision of resistance should be reversed (YHGK-K.2010/337).
You can access our other article examples and petition examples by clicking