Who bears the burden of proof?
Under HMK Article 190, unless the law makes a special provision, the party who derives a right in his or her favor from the legal consequence attached to an alleged fact must prove that fact. The claimant must explain why the land registry record should be corrected; the defendant must also substantiate the facts on which his or her defense rests. The propositions “The deed is in my name, nothing else can be investigated” and “I paid the money, so the deed must be mine” are not sufficient on their own.1
First the fact, then the evidence, then the legal consequence
A fact is a concrete event such as the sale price not being paid, a promise of return being given on a particular date, or the absence of the power of discernment on the day of the transaction. Evidence is the means of proving that event. Legal characterization is the assessment of the event as simulation by the decedent, a fiduciary transaction, lack of capacity or another ground.
The judge applies the law of his or her own motion; however, the judge cannot add to the case, without limit, events that the parties have not asserted. When HMK Articles 25, 33 and 194 are considered together, it is seen that explaining the sequence of events in time is as necessary as using the correct legal term.1
Which evidence is needed for which claim?
| Claim | Evidence to be investigated first | Fact that should not be regarded as sufficient on its own |
|---|---|---|
| Simulation by the decedent (muris muvazaası) | Transfer history, the economic situation of the parties, direct witness knowledge of the decedent's intention, price and payment records. | Merely that there is inequality among the heirs. |
| Abuse of a power of attorney | The scope of the power of attorney, instructions, the chain of sale and payment, the relationship between the agent and the buyer. | Merely that the agent and the buyer know each other. |
| Fiduciary transaction | A written document showing the obligation to return, correspondence coming from the other party, payment and use records. | Merely that the claimant paid the purchase price. |
| Lack of capacity | Health records close to the date of the transaction, treatment information, witnesses and expert examination. | Merely advanced age or a diagnosis made later. |
| Forgery of a signature or power of attorney | The original document, execution records, comparison signatures, technical examination. | A personal assessment made by looking at a single low-resolution photocopy. |
| Bad faith of a third party | The order of transfers, actual use, relations between the parties, the known dispute and the conditions of the transaction. | Treating every family relationship or every low price as automatic bad faith. |
The table shows which question a piece of evidence answers. The admissibility and sufficiency of the evidence are assessed together with the ground of action, the rules of proof and the file as a whole. In particular, the discussion of written evidence in a fiduciary transaction and the position of the heir in simulation by the decedent are not the same.123
Why is a current title deed document not enough on its own?
A current land registry record essentially shows the present state of rights. If the dispute arises from earlier sales, powers of attorney or inheritance transactions, the immovable’s chain-of-title records (tedavül), official deeds, daily register (yevmiye) information and the relevant transaction files are also needed. If the parcel number has changed, the link to subdivision (ifraz), merger (tevhit) or the cadastral survey must be established.
Which documents are sought in the land registry transaction file?
Depending on the nature of the transaction, the official deed, application documents, identity and representation information, the power of attorney used, the transaction date and supporting documents are investigated. It should not be assumed that the same set of documents will be found in every file. A record requested from the court should, as far as possible, be described by date, directorate and transaction number.
For example, in a file in which the authority of the agent is in dispute, having only the latest land registry record brought does not show what the power of attorney permitted. In a claim of rights predating the cadastral survey, the initial determination and finalization documents are important. An evidence request should not be limited to naming institutions; it should state which fact the requested document will illuminate.
The content of an official document and the validity of the underlying transaction are separate
The existence and probative force of an official transaction at the land registry does not mean that claims of lack of capacity, defect of will or simulation can never be examined. Conversely, asserting the contrary of a fact written in an official document is itself subject to its own procedural and evidentiary rules. The allegation that a document is forged and the allegation that a transaction based on a genuine document is legally invalid should be framed separately.12
Do bank transactions show to whom the title deed should belong?
A bank record can strongly show that a given amount passed between given accounts. However, whether the transfer was a sale price, a loan, a gift, a joint investment or another payment must be determined separately. The legal reason for an unexplained transfer cannot be deduced merely from the size of the amount.
How is the payment chain read?
The payment date, amount, sender, recipient, description and the date of sale should be compared together. It is investigated whether the money later came back, whether it passed through an intermediary account and whether there was another payment for the same debt. Rather than detaching a single receipt from its context, the integrity of the related transactions should be preserved.
In a hypothetical case, the claimant sending money to the seller may show that he or she met the price. However, whether registering the immovable in a relative's name was a gift, a loan relationship or a fiduciary transaction containing an obligation of re-transfer must be proved separately. A document or correspondence on the obligation to give the title deed back may answer this second question.
Is a low sale price simulation on its own?
No. The difference between the real value and the declared price takes on meaning together with the other facts. When determining the price, it must also be explained as of which date the value is being investigated. Directly comparing today's high market value with the sale price in the past may ignore the economic conditions.
In simulation by the decedent, the economic strength of the parties, the decedent's need to sell and the real intention; in abuse of a power of attorney, the instructions and the relationships between the parties; and in excessive advantage, the personal conditions the law requires, are investigated separately. The same price difference serves a different function in different grounds of action.
On which subjects can a witness be heard?
A witness recounts events that he or she saw or heard directly. Instead of an assessment of unclear source such as “Everyone knew assets were being smuggled out,” it should be explained at which meeting what was said, who witnessed the payment, or who actually used the immovable. What matters is that the witness describes the concrete event, not that the witness states a legal conclusion.
Can a witness suffice in a relationship that requires written evidence?
HMK Articles 200 and 201 regulate proof by deed and proof against a deed; Article 202 regulates initial evidence (delil başlangıcı); Article 203 regulates the exceptions. Without determining the nature of the transaction and the position of the parties, it cannot be said that “A title deed case is won by witnesses” or that “A witness can never be heard.”1
The family relationships listed in the law and other exceptions may be significant; but not every kinship gives unlimited proof by witnesses for every legal transaction. The rule of proof by deed, the type of relationship alleged and the concrete exception should be assessed together. The monetary limits that change from year to year should also be checked for currency, taking into account the transaction and the applicable provision.
The unification-of-case-law decision of April 1, 1974 on simulation by the decedent explains the right of action of heirs whose inheritance rights are impaired under certain conditions. However, the decision did not bring all details of the method of proof within the scope of unification. The conclusion of the decision on the right of action should not be extended to the position that every piece of evidence will be admitted in every situation.3
Are WhatsApp and e-mail correspondence evidence?
Under HMK Article 199, data in electronic form may have the character of a document. However, not every electronic document is a deed. For it to be regarded as initial evidence under HMK Article 202, conditions are also required such as making the alleged transaction probable and originating from the person against whom it is asserted or from that person’s representative.1
The 2024 WhatsApp decision of the 7th Civil Chamber of the Court of Cassation
In its decision of December 12, 2024, E.2024/195, K.2024/5689, the 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi) assessed an allegation of a fiduciary transaction. The other party's WhatsApp replies indicating that the immovable would be returned were treated as initial evidence in the circumstances of the case. Dismissing the case when an assessment should have been made together with the testimony of witnesses who had knowledge of the sale and payment was a ground for reversal.4
The practical importance of the decision is not that a single piece of correspondence is regarded as the document that transfers the title deed. It is that the correspondence, by supporting the probability of the alleged re-transfer relationship, opens the door to the assessment of the other evidence. A one-sided message whose sender is unknown or that contains only the claimant's own assertion may not produce the same result.
How is the reliability of electronic evidence preserved?
Rather than a single convenient sentence of the conversation, what precedes and follows it, the date information, the identities of the parties and any attachments should be preserved. If possible, the source device and the original file should be kept; no cutting, merging or alteration of content should be done on the image. When a screenshot is objected to, its attribution and integrity may be examined separately.
A notary's viewing of a message does not by itself prove that all the statements in it reflect the material truth. The record can document what was seen at what moment; who sent the message and to which relationship the statement belongs may still be disputed. The manner in which the evidence was obtained also affects its admissibility.
Can unlawfully obtained records be used?
Under HMK Article 189(2), evidence obtained unlawfully cannot be taken into account by the court in proving a fact. That a document supports the case does not make it legitimate to gain entry into another person's account without permission, or to obtain private data unlawfully, in order to get it.1
Submitting correspondence to which one is a party, accessing another person's account and making a secret audio recording are not the same event. In particular, the lawfulness of records should be assessed according to the concrete conditions. That a decision mentions an audio recording does not mean that every secret recording is admitted in all civil cases.
The scope should also be kept proportionate for health and bank records. It may be requested that documents connected with the relevant date and transaction be brought through the court. Bringing the whole private life of third persons unrelated to the dispute into the file may not serve the purpose of proof.
Photocopies, denial of signature and bringing the original of a document
The original of a document and its photocopy do not offer the same possibility of examination. In particular, where a signature or later addition is alleged, it should be investigated where the original is. HMK Articles 219 and 220 regulate the parties' obligation to produce documents in their possession and the consequences of refusing to produce them. The name, date and content of the document in the other party's hands should be described as concretely as possible.1
The decision of the 1st Civil Chamber of the Court of Cassation on the original of a protocol
In its decision of November 11, 2024, E.2024/4867, K.2024/6128, the 1st Civil Chamber of the Court of Cassation (Yargıtay 1. Hukuk Dairesi) emphasized that, in an allegation of a fiduciary transaction, the original of the protocol relied upon must be investigated and the issue of production must be assessed within the framework of HMK Articles 219–220. The files connected with the same protocol and other documents were also important in resolving the dispute.5
The reflection of this decision in practice is this: the examination should not be concluded at once by saying “I only have a photocopy”; who holds the original and whether it can be brought should be investigated. Conversely, the existence of a photocopy does not mean automatic acceptance of the signature and of all the content. The nature of the document, the objection to the signature and the other evidence are assessed together.
Is a forgery examination of an official and a private document the same?
The distinctions in HMK Articles 208–211 must be observed. For a private document whose signature is denied and an official document alleged to be forged, the procedure and consequences are not the same. A general conclusion such as “Forgery was alleged, so all proceedings stopped automatically” cannot be drawn.1
In a signature examination, samples suitable for comparison, proximity in date, the original of the document and expertise are important. A party saying that he or she sees similarity or difference with the naked eye does not take the place of technical examination. The question to the expert should also not be left limited to a vague expression such as “Is it forged?”
Which date is investigated in a claim of lack of capacity?
What matters is the person's power of discernment not on the day the case was filed but on the date on which he or she carried out the transaction in dispute. Advanced age, a chronic illness or a guardianship decision given later does not by itself render all past transactions invalid. Likewise, that a routine examination was carried out at the time of the transaction does not make all contrary evidence unnecessary.2
How are health records and witnesses evaluated together?
Hospital records close to the date of the transaction, diagnosis and treatment information, the medications used and expert opinion are investigated together. Records before and after the transaction are important to the extent that they shed light on the moment of the transaction. Witnesses can describe daily behavior; they do not by themselves determine the medical diagnosis or legal capacity.
If a power of attorney and a later sale are being discussed, the different transaction dates may need to be assessed separately. What the health data in the file show for which transaction should be asked clearly. A general and undated statement that “he was not of sound mind” makes it difficult to set up a sufficient technical examination.
Can an event not asserted in the petition be added later?
The decision of the Civil General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) of October 25, 2023, E.2022/859, K.2023/990 is noteworthy on this point. The majority upheld the decision of persistence (direnme), accepting that in the concrete case the initial account of events was based on lack of capacity, and that the claims of abuse of a power of attorney and simulation asserted later could exceed the procedural limits. The dissenting view held that the initial account also covered the abuse of the power of attorney.6
The correct conclusion to be drawn from the decision
The decision does not say that the judge can never make a different legal characterization. The real issue is the distinction between giving a new legal name and adding new events. Therefore, if it is alleged to whom, at what price and contrary to which instruction the agent made a sale, these events should be explained clearly at the outset.
In the current HMK Article 141, the freedom at the petition stage, the prohibition in later stages, and the possibilities of express consent and amendment (ıslah) are regulated separately. The procedural text applied by an older decision should not be carried over unchanged to a case filed today. On the timely submission of evidence, the exceptional conditions of HMK Article 145 should likewise not be seen as an unlimited right of later supplementation.1
Which questions do experts and on-site examination answer?
The expert serves on matters whose resolution requires special or technical knowledge; the duty of legal assessment and decision lies with the court. The value of the immovable, the attribution of a signature, the technical meaning of health data or the parcel connection may require different specialties. It is not sufficient to direct every question to a single valuation expert.1
How is an expert report effectively objected to?
The objection should be directed not only at the unfavorable result of the report but at its method and data. The suitability of the comparables used in terms of date and location, the taking into account of the share that is the subject of the case, the suitability of the comparison signatures or the deficiency in the health records should be made concrete.
Under HMK Article 281, within two weeks of notification of the report, it may be requested that deficiencies be completed, that explanations be given, or that a new expert examination be carried out. In cases where preparation is very difficult, impossible or requires special technical work, provided that the application is made within the first period, an additional period of one time only, not exceeding two weeks, may be granted. This possibility should not be regarded as an automatic additional period.1
How is evidence at risk of being lost preserved?
The preservation of evidence (delil tespiti) under HMK Article 400 and the following articles serves to protect the evidence of a fact that will be asserted later or whose turn for examination has not yet come. The possibility that the evidence will be lost, or that asserting it later will become significantly more difficult, is important for the legal interest. Preservation of evidence is not the same instrument as an interim injunction that prohibits the sale of the immovable.1
For example, if the existing condition of a structure is going to change, on-site examination and technical determination may be necessary. The request should explain which fact is to be determined, by which method and why now. A vague request in the form of “Let all evidence for my case be collected” does not match the purpose of preservation of evidence.
Conclusion
Proof in a title deed case requires matching the right event with the right evidence before submitting many documents. The land registry history, the movement of money, correspondence, witnesses and expert examination should complement one another, and the limits of each should be clearly seen. Preserving the source document, evaluating the other party’s explanation and observing procedural time limits are as important as the existence of the evidence. Which rule of proof applies in a concrete file is determined by the ground of action and the legal position of the parties.
Frequently Asked Questions
If I paid the sale price, can I get the title deed back?
The payment is important evidence; however, the legal relationship requiring registration of the immovable in your name must also be proved. A gift, a loan and a fiduciary transaction produce different consequences.
Is a WhatsApp message conclusive evidence in a title deed case?
Not every message is conclusive evidence or a deed. Its content, sender and reliability are examined; if the conditions are met, it may be evaluated together with the other evidence as initial evidence.
Can a case be filed on the basis of a photocopy of a contract?
The existence of a photocopy does not by itself bar the claim. However, the original of the document, the objection to the signature and the other evidence must be investigated; a photocopy does not automatically prove all of the content.
If I have witnesses, is a written document unnecessary?
This depends on the legal relationship and the rules of proof by deed. Initial evidence and the statutory exceptions are assessed separately; not every title deed dispute is subject to the same regime of proof.
Does a guardianship decision given later invalidate an old sale?
It does not by itself. The power of discernment on the date of the sale or power of attorney transaction is investigated through evidence that sheds light on that period.
Is the expert report binding on the judge?
The judge evaluates the report together with the other evidence. The expert examines the technical matter; the authority to determine the legal result belongs to the court.
What can I do if I cannot obtain the bank records myself?
You may ask the court to have the records brought by specifying the relevant account, period and transaction. The request must be connected with the event to be proved.
Can I always submit evidence that I find later?
No. The time limits for submitting evidence and the exceptions in HMK Article 145 are taken into account. The reason for the delay and its effect on the proceedings should be assessed.
Sources and legal bases
1. Law No. 6100 on Civil Procedure (Hukuk Muhakemeleri Kanunu), in particular Articles 25–33, 141, 145, 189–203, 208–220, 266, 281–282, 400–403.
2. Law No. 4721 Turkish Civil Code (Türk Medeni Kanunu), in particular Articles 3, 7, 13–15, 1023–1025.
4. Court of Cassation 7th Civil Chamber, December 12, 2024, E.2024/195, K.2024/5689.
5. Court of Cassation 1st Civil Chamber, November 11, 2024, E.2024/4867, K.2024/6128.
6. Court of Cassation Civil General Assembly, October 25, 2023, E.2022/859, K.2023/990.