T.R. SUPREME COURT
- Legal Department
Basis: 2012/16321
Decision: 2013/3719
Decision Date: 18.03.2013
CASE OF CANCELLATION AND REGISTRATION OF THE TRIAL – CHEATING CAN BE PROVED BY ANY EVIDENCE – THE COURT OVERSEE THE PROVISION, SUPPORTING THE PARTIES’ ALLEGED AND EVIDENCE TO BE EXAMINED AND DECIDED IN ACCORDANCE WITH THE EXPLAINED PRINCIPLES
SUMMARY: As cheating (deception) can be proven with all kinds of evidence, the use of the right of cancellation is not dependent on any form. A statement of will directed to the other party within a one-year period of disqualification from the date of learning of the fraud (deception) can also be used by way of plea or lawsuit. However, no examination and evaluation has been made by the court in a way that covers the principles and facts explained above. In this case; While the court should examine the claims and evidences of the parties in line with the principles explained, and a decision should be made according to the result, it is not correct to make a decision with a mistaken assessment and incomplete examination.
(6098 S. K. Art. 36) (818 S. K. Art. 28)
Lawsuit: At the end of the title deed cancellation and registration, compensation lawsuit between the parties, the decision of the local court regarding the rejection of the lawsuit was appealed by the plaintiff’s attorney within the legal period, the file was examined, the report of the Investigation Judge Derya Alaybeyoğlu was read, his explanations were heard, the need was discussed and considered:
Decision: The case is related to the title deed cancellation and registration and compensation requests.
In the concrete case where the case is based on the legal reason for recourse from donation, the court decided to reject the case on the grounds that the conditions for recourse from donation, explained in Article 244 of the Code of Obligations, were not met.
From the contents of the file and the evidence collected, it is understood that the plaintiff assigned the immovable property with parcel number 3 to the defendant N. on 08.02.2001 and his shares in parcels 21, 243, 317 and 320 on 27.02.2004 by selling to the defendant M.
The plaintiff, with the belief that he was worried about his future due to his advanced age and the death of his wife, and that they would look after his son and daughter-in-law until his death, and that they would look after his daughter-in-law in 3 parcels, and after a while, his shares in plots 21, 243, 317 and 320. He claimed that he transferred it to the defendant’s son, but in 2009 he became ill and needed care. and opened the case at hand.
It is clear that the claim is based on a legal reason for cheating (deception) in terms of the content of the claim and the way it is put forward. The plaintiff also stated that his assets were taken away by fraud (deception) with the petition dated 13.07.2011 during the trial and explained that it was based on the legal reason for fraud (deception).
As known; cheating (deception) is generally defined as deliberately arousing an erroneous opinion in order to induce someone to make a declaration of will, especially to make a contract, or to protect or maintain an essentially erroneous opinion. There is error in error and deception in cheating. As explained in article 36/1 of the Turkish Code of Obligations No. 6098 (Article 28/1 of the Code of Obligations No. 818), which entered into force on 01.07.2012 .> In the presence of the mentioned conditions, the deceived party can use its right to terminate the legal relationship retroactively and request back what it has given.
On the other hand, cheating (deception) can be proven with all kinds of evidence, and the use of the right of cancellation is not dependent on any form. A statement of will directed to the other party within a one-year period of disqualification from the date of learning of the fraud (deception) can also be used by way of plea or lawsuit.
However, no examination and evaluation has been made by the court in a way that covers the principles and facts explained above.
In this case; While the court should examine the claims and evidence of the parties in line with the principles explained and a decision should be made according to the result, it is not true that the decision was made with a mistaken assessment and incomplete examination, as it is written.
Conclusion: The plaintiff’s objections to this aspect are valid. It was unanimously decided on 18.03.2013 that the judgment be OVERFINED pursuant to Article 428 of the HUMK numbered 1086, due to the reasons explained (with the provisional article 3 of the Law No. 6100) and that the advance fee be returned to the appellant.