A discrepancy intentionally created between the intent and the declaration is called collusion (muvazaa). There are two types of collusion:
Absolute collusion (mutlak muvazaa) is where the parties, for the purpose of deceiving third parties, agree to create an appearance that does not conform to their true intent and bears no legal force or consequence between them; although they have no intent to conclude a contract, they appear to do so.
Relative collusion (nisbi muvazaa) is where the parties conclude a contract in accordance with their true intent but conceal it behind an apparent contract that does not conform to their intent.
Collusion by a deceased person regarding inheritance (muris muvazaası) is, by its nature, a type of relative collusion. It occurs when a legator (miras bırakan), aiming to deprive an heir of their inheritance rights, conceals their true intent by declaring the intent as a “sale” in the contract made at the land registry, while in reality, the transfer is intended as a “donation.”
Collusion is applicable to bilateral transactions. Collusion cannot be mentioned in testamentary dispositions (ölüme bağlı tasarruflar), which are in the nature of a unilateral declaration of intent.
(“…According to the documents in the file, the evidence upon which the judgment is based, the legally required reasons, and especially since collusion is applicable to bilateral transactions, and it cannot be mentioned in testamentary dispositions, which are in the nature of a unilateral declaration of intent; and considering there is no illegality in the will in terms of the conditions it contains, the plaintiff’s appeal objections outside the scope of the following paragraph are groundless.” T.C. COURT OF CASSATION 2ND CIVIL CHAMBER, Basis: 2006/19259, Decision: 2007/13908)
Individuals who have a legal interest in filing a lawsuit and hold the status of an heir as a result of muris muvazaası may file a lawsuit for the cancellation and registration of the title deed. Muris muvazaası can be proven by all kinds of legal evidence. (For instance; it can be proven through facts such as the human relationship between the legator and the defendant, whether the defendant has purchasing power, whether the events are within the ordinary course of life, etc.) There is no statute of limitations for a lawsuit for the cancellation and registration of the title deed to be filed as a result of muris muvazaası; the lawsuit may be filed at any time.
The Court of Cassation Decision regarding the subject is as follows:
T.C. COURT OF CASSATION 2ND CIVIL CHAMBER
Basis No: 2007/2074
Decision No: 2007/4093
Date: 15.3.2007
SUMMARY: The plaintiff’s request does not concern the reduction of the disposition (tenkis) but pertains to a receivable in proportion to the inheritance share based on muris muvazaası (due to the fact that the immovables were disposed of by the defendant before the lawsuit). From the evidence collected, it is understood that the defendant has lived together with the other defendant without a civil marriage since 1996, that these two later married officially, and that the subject immovables were transferred by the legator to the defendant while they were living without a civil marriage by appearing as a sale but were in reality transferred without consideration (bedelsiz), and that the apparent sale transaction was collusive. In this case, while a receivable should have been awarded in proportion to the plaintiff’s inheritance share based on the actual values of the immovables at the time they were disposed of by the defendant, the rejection of the request was not found correct.
LAWSUIT: Regarding the judgment whose date, number, subject, and parties are shown above; it was decided to be affirmed by the decree of the Chamber dated 12.12.2006 and numbered 6127-17427. Upon the request for the correction of said decision of our Chamber, the documents were read and discussed:
DECISION: The plaintiff alleged that their legator (mother) Feriha passed away on 19.1.2005, leaving the plaintiff and their brother Halil as legal heirs; that the legator transferred dwelling No. 8 in the apartment building registered at plot 59 in İzmir Kahramanlar district on 12.8.2002, and the immovable property No. 1981 in Çanakkale Kepez village on 5.8.2002, to her brother Halil’s common-law wife Mehlike by appearing as a sale; that the transfer process was in reality a donation rather than a sale, no consideration was paid in return, and the transaction was made for the purpose of smuggling assets from the inheritance (mirastan mal kaçırmak) and depriving the plaintiff of their inheritance rights in these immovables, and was based on collusion. The plaintiff requested, since the defendant Mehlike later disposed of these immovables by selling them to third parties, that for now 60,000 YTL be collected jointly and severally from the defendants due to the collusive transaction, without prejudice to rights regarding excess claims.
The counsel for the defendant requested the dismissal of the lawsuit, stating that the subject immovables were purchased by the client and there was no collusion in the transaction.
The court dismissed the lawsuit on the grounds that “…it could not be proven that there was collusion in the purchase of the immovables by the defendant Mehlike, who is in the position of a third party…”
Upon the plaintiff’s appeal, the Court of Cassation affirmed the judgment. In the affirmation decision of the Court of Cassation, it was accepted that “…the legator’s dispositions were donations,” but it was stated that “…however, it could not be proven that this donation was made with the intent to encroach upon the plaintiff’s reserved share (saklı pay)…”
The plaintiff requested a correction of the decision.
The plaintiff’s request does not concern the reduction of the disposition (tenkis) but pertains to a receivable in proportion to the inheritance share based on muris muvazaası (due to the fact that the immovables were disposed of by the defendant before the lawsuit). From the collected evidence, it is understood that the defendant Halil has lived together with the other defendant Mehlike without a civil marriage since 1996, they officially married on 28.2.2004, and the subject immovables were transferred by the legator to the defendant Mehlike while they were living without a civil marriage by appearing as a sale but were in reality transferred without consideration, and the apparent sale transaction was collusive. In this case, while a receivable should have been awarded in proportion to the plaintiff’s inheritance share based on the actual values of the immovables at the time they were disposed of by the defendant, the rejection of the request was not found correct. However, as this aspect was overlooked during the initial examination and the judgment was affirmed, it has become necessary to accept the plaintiff’s request for correction, set aside our Chamber’s affirmation decision, and decide on the reversal of the local court’s decision.
CONCLUSION: Pursuant to Article 440/1-4 of the Code of Civil Procedure, it was unanimously decided on 15.03.2007 to accept the plaintiff’s request for correction of the decision, to set aside our Chamber’s affirmation decision dated 12.12.2006 and numbered 2006/6127-17427, to REVERSE the local court decision for the reason shown above, and to return the advance appeal correction fee to the plaintiff who deposited it.