Land Registry Cancellation And Registration Case Due To Legal Incompetence Court Of Cassation Decisions
Investigation of Evidence in a Deed Cancellation Case Due to Incompetence
The basis of the deed cancellation and registration case is the claim that the defendant purchased immovable property from a person who lacks 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 discrimination 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 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 as stated in Article 282 of the Code of Civil Procedure No. 6100 (CCP) is not binding on the judge, 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, 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 incompetence is related to public order and due to its importance, it should be examined first, all evidence to be submitted by the parties in this direction should be collected, medical board reports, patient observation papers, prescriptions, etc. of the heir, if any, should be requested, and the whole file should be sent to the 4th Specialization Board of the Forensic Medicine Institute in accordance with the provisions of Articles 7 and 16 of the Law No. 2659. Specialized 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 in case it is determined that the heir was competent, completing the investigation completely, and deciding according to the result to be obtained, but it is against the law to decide by ignoring the aforementioned issues. (Court of Cassation 1st Civil Chamber – Decision No: 2015/7013).
Who and How Can File a Title Deed Cancellation Case Due to Lack of Capacity?
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 named 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 for lack of capacity is not a decision that the lawsuit cannot be heard, but a decision on the merits that determines the absence of party capacity.
Accordingly, it is beyond any doubt that a lawsuit for the cancellation and registration of the title deed of an immovable property can only be filed by the person who has the right of ownership on that immovable property, and that the court must ex officio consider at every stage of the case whether the party requesting the cancellation and registration of the title deed is actually the owner of that right.
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 the 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 is actually the rightful owner 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 authorized 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 case at hand, the plaintiffs have filed a request for 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 naming 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 also clear that the plaintiffs who filed the lawsuit on behalf of their father, who is the rightful owner of the immovable property subject to the lawsuit and who is alive as of the date of the lawsuit, do not have the authority (right to sue) to sue the immovable property; 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 lawsuit on the merits, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with. Therefore, the decision of resistance should be reversed (YHGK-K.2010/337).
You can access our other article examples and petition examples by clicking here.