I. Introduction
Muris Muvazaası (theft of property from inheritance) can be defined as a collusive transaction in which a person pretends to transfer the real gratuitous acquisitions with a sale or a contract of maintenance until death in order to deprive his heirs of the right of inheritance.
In our country, within the framework of the provisions of inheritance law; a person does not have 100% disposition capacity on the assets to be subjected to inheritance. Therefore, when a person dies, his/her assets are legally required to be divided among his/her heirs, calculated in accordance with certain ratios.
However, as it is frequently seen in practice, sometimes the heir appears to have sold his/her assets to one of his/her heirs before his/her death, or to have transferred them to one of his/her heirs with a maintenance contract until death, and tries to prevent the other heirs from claiming rights on the said assets as heirs after the death of the heir. As a legal reflection of this situation; a number of lawsuits based on the reason of muris collusion can be filed by the heirs, claiming that the right in question is tried to be eliminated by collusion.
II. Features of Muris Muwazaa:
Muris collusion is legally characterised as partial collusion. Partial (qualified) collusion is a type of collusion that includes two separate transactions. One of these transactions is the hidden transaction that reflects the real will of the parties, and the other can be defined as the apparent transaction that causes collusion and does not actually reflect the real will of the parties, but they want it to appear so from the outside. In fact, the real will of the parties is the transaction that they conceal, and with the apparent transaction they show in the formality, they try to deceive / mislead third parties by wrapping their real will in a cover that seems to be in accordance with the law.
For example; in the event that a real estate which is actually intended to be donated is shown as a sale in the title deed; the donation transaction is essentially a hidden transaction, while the sale transaction is an apparent transaction. Since the apparent transaction does not reflect the real will of the parties, the secret donation agreement is invalid since the formal conditions required by the TCO are not complied with. (Unification Decision of the Court of Cassation dated 01.04.1974 and numbered ½)
a) What are the Conditions for the Filing of a Muris Muvazaa Case?
In order to be able to talk about the legal existence of Muris collusion, some essential elements are sought. These are;
- your apparent transaction,
- collusion agreement,
- the intention to deceive third parties and
- of collusion
in the form of
The heir may perform the said transaction in collusion with a third party or with his own heir. If the purpose of the heir’s making this transaction is to damage the inheritance rights of other heirs, this will must be revealed in a way that does not leave any room for doubt together with the transaction in question and its elements. Because, as it is known, pursuant to Article 6 of the TCC and Article 190/1 of the CCP, the claim of collusion must be proved with concrete evidence by the party expecting a result in its favour. However, due to its nature, collusion may not always be proved entirely through concrete evidence.
In cases like this;
- the customs and traditions of our country,
- social trends and perspectives,
- the ordinary course of life,
- whether the heir has a just and reasonable reason for carrying out the transaction,
- whether the defendant has purchasing power,
- The flow of money between the parties to the collusive transaction at the date of the transaction,
- the difference between the sale price and the real market value on the transaction date,
- the sale price is actually quite symbolic,
- human relations between the parties and the inheritor, events or circumstances that would indicate that the inheritor made the transaction in question consciously,
- if the transaction subject to collusion is a contract of maintenance until death, whether the heir really needed care in accordance with the said contract, or whether the heir made a contract of maintenance until death very shortly before his/her death
It will be useful to make use of facts such as.
b) Who can be the Plaintiff and Defendant in Muris Muvazaa Case?
In the process of theft of property from inheritance, the party with whom the deceased performs the collusion may be a third party or another heir of the deceased. The definition of legal heirs within this scope includes the adopted child and the adopted child’s descendants.
In such cases, all heirs whose legal right of inheritance has been violated, whether they have a reserved share or not, may file a lawsuit based on the legal reason of muris collusion. (Decision of the Court of Cassation dated 01.04.1974 and numbered 1/2)
It is not important whether the persons who will file a lawsuit have the title of heir at the time of the collusive transaction; it is sufficient that they have the title of heir at the date of filing the lawsuit. As long as these persons are not an heir whose inheritance has been rejected or whose inheritance has been waived. For the determination of Muris collusion, it is not necessary that all of the heirs whose inheritance right is abducted with the will to damage the inheritance right are certain, it is sufficient that the collusion transaction in question has been carried out against any heir. The person(s) who will file the lawsuit; must demonstrate his/her relationship with the heir by obtaining a certificate of inheritance. These persons may file their lawsuits based on muris collusion together or separately. It should be noted that since the right of inheritance is realised upon the death of the heir, a lawsuit may be filed due to the collusive transactions in question after the death of the heir.
c) Which is the competent and authorised court in Muris Muvazaası Case?
Pursuant to Article 2/I of the Code of Civil Procedure, “Unless otherwise stipulated, the court in charge in cases relating to property rights and personal assets, regardless of the value and amount of the subject matter of the lawsuit, is the civil court of first instance”, the court in charge in muris collusion cases is the civil courts of first instance.
If the asset value that constitutes the subject matter of the case of muris collusion is an immovable property, according to Article 12/I of the CCP, “The court of the place where the immovable property is located shall have absolute jurisdiction in cases related to the real right on the immovable property or in cases that may lead to a change in the ownership of the real right and in cases related to the possession of the immovable property or the right of retention.” As it is seen, if the subject matter of the transaction in question is an immovable property, the court of the place where the immovable property is located; In other cases, the general jurisdiction rules regulated in the CCP shall apply.
III. Cancellation and Registration of Title Deed in Muris Muvazaa Case
In the event that the transaction subject to collusion takes place in the form of the sale or transfer of a real estate to the heir or a third party with a contract of maintenance until death, it will generally be necessary to cancel the transaction in question due to the fact that the sale transaction does not reflect the real will and the gratuitous acquisition does not comply with the form requirement. In this context, if the subject of the collusion transaction in question is an immovable property, since the cancellation of the transaction subject to collusion will be requested when filing a lawsuit, most of the time “Cancellation of Title Deed Due to Muris Collusion and Registration in the Name of Heirs” is requested. However, the point to be considered is; for the cancellation of the title deed and registration on behalf of the heirs, the collusion must be proven and the owner registered in the title deed must be involved in this collusion in bad faith. If the immovable property is not still in the possession of the malicious person to whom the muris transferred it, if it has changed hands and has been acquired by bona fide persons, the request for cancellation and registration of the title deed may be rejected in accordance with the principles of trust in the title deed and protection of bona fide third parties. Since the cancellation and registration of the title deed will also be directed to the current owner; this path should not be preferred if the current owner is in good faith. Here; it will be useful to file a “lawsuit for compensation due to muris collusion”.
IV. Examination of Muris Muvazaası in the Light of the Court of Cassation Decisions
- Court of Cassation 1st Civil Chamber, Decision No. 2015/12513 E:
“Muris collusion consists of two transactions, the apparent transaction and the hidden transaction, of which the apparent transaction is invalid because it does not conform to the real will of the parties, and the hidden transaction is invalid due to the lack of form specified in Article 706 et seq. of the Civil Code, Article 237 of the Code of Obligations and Article 26 of the Land Registry Law.”
- Court of Cassation 1st Civil Chamber, decision numbered 2014/14001 E;
“The main purpose of the case of Muris collusion is to determine whether the heir has the intention to evade property from the heirs. In order to make a healthy determination, the existing data and the facts at hand must be evaluated very well. The evaluation should be made by taking into account the customs of the country and the region, the ordinary course of events, whether the heir had a reasonable reason to conclude the contract, the purchasing power of the defendant, the difference between the sales price and the actual value on the date of the contract, the faithful relationship between the parties and the heir. In the concrete case, although there is an exorbitant difference between the price shown in the contract and the actual price in the assignment made to the defendant, this issue alone cannot be evidence of collusion. The defendant’s taking care of the heir creates a sense of gratitude, and it is normal for the heir to transfer the title deed registered in his name to his son due to his gratitude to his son who took care of the heir. The deed cancellation and registration lawsuit filed by the other heirs due to collusion should be rejected.”
- Court of Cassation 1st Civil Chamber, E:2012/580, K:2012/2568, T:08.03.2012;
“On the other hand, there is no doubt that compensation can be requested as well as title deed cancellation and registration based on the legal reason of muris collusion. In the concrete case, the plaintiffs have preferred the request for compensation. Therefore, the work to be done by the court is to investigate whether the assignment made by the heir to the defendant Vehbi is for the purpose of evading the inheritance and whether it is collusive, in other words, the will of the heir within the framework of the Decision of Unification of Case Law dated 01.04.1974 and numbered 1/2 should be clarified in a way that leaves no room for discussion and a decision should be made by considering that it will not be subject to the statute of limitations if it is understood that it is related to collusion, but it is not correct to have made a decision as written with an erroneous evaluation.”
- 2nd Civil Chamber of the Court of Cassation, decision dated 14.04.1976, numbered 1976/3027 E and 1976/3280 K;
“Considering that the defendant has given all of his assets to the defendant, it should be accepted that the contract of care and maintenance until death is intended to damage the reserved share. Despite this, it is wrong to dismiss the case by saying that there is no intent. The work to be done consists of making an investigation and examination within the framework of the equalisation provisions and making a judgement.”
- Court of Cassation 1st Civil Chamber, decision no. 2014/3526 e:
“The transfer of ownership of movable goods is regulated in the Code of Obligations and the donation of movables by hand is not subject to a form. Therefore, when the donor delivers the movable property to the donated person, the ownership of the movable property passes to the recipient. In movable goods, even if the apparent transaction is invalid, the hidden, i.e. real transaction is valid since it does not depend on the form requirement. In the concrete case, the secret contract between the heir and the defendant is related to the donation of movable (automobile) property. Since such contracts are not subject to the condition of form, the ownership passes to the buyer when the property is donated by hand. Therefore, such agreements are not within the scope of Article 19 of the CO No. 6098 and the IBK dated 1/4/1974, which is the most fundamental case law on muris collusion.”
- 1st Civil Chamber of the Court of Cassation, E: 2008/9362, K: 2009/187, T: 13.1.2009;
“It has been determined that the money of the immovables was paid by the heir to the owners of the records and the registry records were transferred to the defendant, and it is understood that the case was dismissed on the grounds that the Decision of Unification of Case Law dated 01.04.1974 and numbered 1/2 was not applicable in the case, considering that there was no direct assignment made by the heir to the defendant.
Indeed, in terms of the mentioned concrete case, the aforementioned Decision of Unification of Jurisprudence has no application in the case. In that case, it cannot be said that the transaction is also caused by the muris collusion.
However, the aforementioned transaction is in the nature of a secret donation, and it is undoubted that the provisions of equalisation will be applied if the conditions are fulfilled. It cannot be said that it is correct that the court has made a conclusion by ignoring this issue, even though the other requests in the lawsuit have been made as well as the equalisation request.”
- Court of Cassation 1st Civil Chamber, decision 2014/11683:
“The plaintiff is the child of the inheritor from his first wife and claims that he was deprived of property and that the inheritor transferred his immovable property to his second wife, the defendant, by collusion. In the concrete case, it cannot be said that the heir had an intention to evade property. Because, the defendant (the second wife) took care of the heir who was ill during the marriage and this care created a sense of gratitude. In addition, since the assignment of the immovable is not completely gratuitous, the case for cancellation and registration of the title deed should be rejected since there is no collusion in the concrete case.”
V. Conclusion
In Turkish Law, since the heirs do not have 100% right of disposition over their inheritance and the inheritance rights of the heirs with reserved shares are strictly protected; most of the time, the heirs may try to override the mandatory provisions of the law by means of fraud and collusion against the law. Since the lawsuits based on the cause of muris collusion or theft of property from inheritance are an important type of inheritance law case that includes many different types of lawsuits such as cancellation and registration of title deeds, equalisation, compensation, it will be beneficial to follow up through an expert law firm.
