SUMMARY: Heirs are jointly and severally liable for the debts of the deceased. Therefore, the heir who has not rejected the inheritance is responsible for the entire debt of the deceased.

3rd Civil Chamber of the Court of Cassation

E. 2019 / 2609 K. 2016 / 9800 T. 09.12.2019

Pursuant to Article 599 of the Turkish Civil Code No. 4721; "The heirs acquire the inheritance as a whole upon the death of the heir, in accordance with the law. Without prejudice to the exceptions stipulated by law, the heirs directly acquire the real rights, receivables, other property rights, possession over movables and immovables of the heir and become personally liable for the debts of the heir. "

Article 610 of the same Law stipulates that “The heir who does not reject the inheritance within the legal period shall unconditionally acquire the inheritance.”

According to Article 641 of the TCC regulating the “responsibility of heirs”; heirs are jointly and severally liable for the debts of the estate. However, the responsibility for the debts of the estate is joint and several in the external relationship (against third parties) and in the internal relationship (among the heirs) in proportion to the inheritance share.

Joint and several liability is a state of co-obligation in which the whole or part of the debt can be claimed from all or part of the obligors due to a provision of law or a declaration of will, and the others are released from the debt against the creditor to that extent by the performance or substitute performance of one of the obligors.

According to paragraph 2 of Article 163 of the Turkish Code of Obligations, the liability of debtors continues until the debt is paid in full.

In the concrete case; pursuant to the external immovable sale agreement dated 17/04/2010 between the parties and the defendant's heir ..., it was agreed that 178 square meters of the immovable subject to the will would belong to the plaintiff in exchange for 30.000.000 old TL, and it is fixed that the price of the immovable was paid by the plaintiff to the defendant's heir. In the lawsuit that the plaintiff has filed in alternation based on the external immovable sales contract, the plaintiff has firstly requested the cancellation and registration of the title deed, and if it is not accepted, the collection of the fair value of the immovable from the defendant heir, and it is understood that the receivable is a probate debt.

As such, the court; within the framework of the material and legal facts explained above, taking into account that the defendant heir, who did not reject the inheritance, is jointly and severally liable to the plaintiff for the estate debt subject to the lawsuit, while it should be decided to collect the entire amount of 12.180,00 TL determined as the fair value of the immovable from the defendant; With the wrong evaluation, it is contrary to the procedure and the law to establish a written judgment for the collection of the price determined in proportion to the defendant's share according to the certificate of inheritance from the defendant, and it required a reversal.

CONCLUSION

For the reasons explained in the first subparagraph above, all appellate objections of the defendant's counsel and the other appellate objections of the plaintiff's counsel are rejected, and for the reasons explained in the second subparagraph above, the judgment is hereby REVERSED in favor of the plaintiff pursuant to Article 428 of the Code of Civil Procedure. For the reasons explained in the second subparagraph, it was unanimously decided on 09/12/2019 to return the prepaid appeal fee to the appellant upon request, in accordance with the 440th article of the Code of Civil Procedure No. 1086 with reference to the provisional article 3 of the Code of Civil Procedure No. 6100, with the decision correction path open within a period of 15 days from the notification of the decision.