TURKISH SUPREME COURT
8th Civil Chamber Case No: 2016/22021
Decision No: 2017/3112
Decision Date: 07.03.2017
SUPREME COURT DECISION
COURT: Civil Court of First Instance
TYPE OF CASE: Cancellation of Title Deed, Registration and Claim
In the case between the parties described above, after the trial conducted by the Court,
a decision of lack of jurisdiction was given, and upon the appeal of the judgment by the plaintiff’s attorney and the defendant’s attorney,
the Chamber examined the file and considered the matter. DECISION
The plaintiff’s attorney stated that the plaintiff purchased the independent section numbered … on plot … in island … in the name of the defendant, that the defendant violated the duty of loyalty, and that the conditions for revocation of the donation have been met because the defendant violated the obligation arising from the law pursuant to Article 295/2 of the Turkish Code of Obligations, and requested and sued for the cancellation of the title deed and its registration in the name of the plaintiff, or if this is not possible, for the collection of the value of the immovable property at the date of the lawsuit from the defendant. The defendant’s attorney argued for the dismissal of the lawsuit. The court issued a decision of lack of jurisdiction on the grounds that the immovable property was purchased in the name of the defendant one day after the marriage date, that the lawsuit is of the nature of an intramarital property dispute, and that the Family Court is responsible for hearing the case. The judgment was appealed by the plaintiff’s attorney and the defendant’s attorney. Upon examination of the entire file; It is understood that the plaintiff, in the petition, explicitly stated that the defendant violated his legal obligations pursuant to Article 295/2 of the Turkish Code of Obligations, and therefore the conditions for revocation of the donation were met, and requested the cancellation and registration of the title deed based on the reason of revocation of the donation, or if that is not possible, a claim for receivables. Therefore, the plaintiff’s claim is based on general provisions (Articles 285 et seq. of the Turkish Code of Obligations) and is not a claim within the scope of the liquidation of the marital property regime. Therefore, since the claim does not originate from the second book of the Turkish Civil Code, the Family Court is not competent, and the place of resolution of the dispute is the Civil Court of First Instance, which will be determined in accordance with Article 2 of the Code of Civil Procedure No. 6100. Since jurisdiction is a condition of litigation related to public order (Article 114/c of the Code of Civil Procedure), it is considered ex officio by the court at every stage of the proceedings, even if it is not raised as a claim or defense (Article 115/1 of the Code of Civil Procedure). The court’s decision to declare itself incompetent on the grounds that the Family Court was competent, instead of hearing the case in the Civil Court of First Instance under general provisions, was contrary to procedure and law and necessitates reversal.
CONCLUSION: For the reasons stated above, the appealed judgment is REVERSED in accordance with Article 428 of the Code of Civil Procedure No. 1086, by way of Article 3 of the Provisional Law No. 6100, and the possibility of requesting a correction of the judgment is closed in accordance with Articles 440/III-1, 2, 3 and 4 of the Code of Civil Procedure, and the advance fee is to be returned to the appealing plaintiff and defendant. The decision was made unanimously on 07.03.2017.