5403 Sayılı Kanun Çerçevesinde Terekedeki Tarım Arazilerinin Devredilmesi Karşısında Muris Muvazaası

Abstract

The Law on Protection of Soil and Land Use, numbered 5403, aims to protect the unity of agricultural lands, and to prevent the division of the soil with inheritance. This law stipulates first, the possibility regarding the giving over of the agricultural land in succession to one or more heirs, to a family partnership, to a limited liability company or to a third person with the consensus of the heirs and second, in case of disagreement, the judge shall decide whether to leave the agricultural land to a competent heir or to sell the land. Furthermore, according to this law, the competent heir to whom the agricultural land will be left can be determined by means of testamentary disposition. It is possible and also valid within the legal constraints that the testator can also transfer the agricultural land to one of the heirs while he is alive. It is arguable whether this transaction can be considered as the testator’s simulation or not, if this transaction has also been made with a simulated transaction. Some principles are set out by the Supreme Court in terms of the simulation of the testator, and although these principles and decisions are criticized by the doctrine, such cases are held by these principles. The purpose and the regulations of the Law numbered 5403 shall be taken into consideration in determining testator’s simulation.