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Under the Mohammedan law, the moment a wakf is created, all rights of property pass out of the wakif and is vested in God. The property is then taken care of by a Mutawalli. A Mutawalli is more like a manager than a trustee and so far as the wakf property is concerned, he has to see that the beneficiaries get the advantage of the usufruct. All the beneficiaries are entitled to benefit equally subject to any special power conferred on the Mutawalli. The statement in Mulla’s ‘Mohammedan Law’ that a “Mutawalli is not a mere superintendent or manager but is practically speaking the owner” is not correct. [Bibi Saddiqa Fatima vs. Saiyed Mohd. Mahmood Hasan, AIR 1978 SC 1362]
A mutawalli is not entitled to any remuneration as of right. The wakif may provide for remuneration for the mutawalli.
Who is appointed as a Mutawalli?
Any person of sound mind who has attained the age of majority can be appointed as a mutawalli. [Syed Hasan v. Mir Hasan (1917) 40 Mad 543] A minor may be a mutawalli where the office of mutawalli is hereditary and the person entitled to succeed is a minor, or where the line of succession is laid down in the wakf-nama and the office falls on a minor. [Piran vs. Abdool Karim, (1891) 19Cal 203]
Both male and female of any religion can be appointed as a mutawalli. The mutawalli must be capable of performing the particular duties under the wakf. If religious duty or spiritual functions are a part of the duties of a mutawalli, a female and non-muslim cannot be appointed as a mutawalli. [Shahar Bano v. Aga Mahommad (1907) 34 I.A. 46] Thus a woman or a non-muslim cannot be Sajjadanashin (spiritual head), Khatib (one who reads sermons), Mujawar of a dargah, an Imam of a mosque (one who leads congression) or a mulla. A foreigner cannot be the trustee of any wakf property in India.
Who can appoint a Mutawalli?
The wakif enjoys the full power of appointment of mutawalli. But if a wakf is created without the appointment of a mutawalli, then
- according to Imam Abu Hanifa and Imam Muhammad, the wakf fails;
- according to Abu Yusuf, the dedication is valid and the wakif becomes the first mutawalli;
- according to Shia law, the wakf is valid and has to be administered by the beneficiaries
The wakif has the power to lay down rules for the succession to the office of mutawalli and to nominate the successor thereto; mutawalli can be appointed by the following in the given order:
- By the wakif.
- Failing him, by the executor of the wakif.
- Failing him, by the mutawalli on his deathbed.
- Failing him, by the court. The power of appointment is vested in the District Court. When the court appoints a mutawalli, it will take into consideration: i) the direction, if any, given by the founder (the court has the discretion to disregard any direction of the wakif it feels that to do so will be to the manifest advantage of the wakf) ii.) Preference should be given to a member of the wakif’s family over an utter stranger. iii) In a contest between wakif’s lineal descendant and one who is not a lineal descendant, the court is free to exercise its discretion.
- In some circumstances, a mutawalli may be appointed by a congregation. But a mutawalli appointment by this method is possible only in the case of a local wakf such as the mosque or a graveyard for the members of a particular locality.
Powers of a Mutawalli
- A mutawalli has the power of management and administration of wakf properties. Since the properties vest in him, in those cases where they are not in his possession, he can sue for possession.
- He has the full power of utilizing the wakf property for the purpose which the wakf has been created. But he has no power of alienating the wakf property unless the wakf deed specifically authorizes him to do so.
- Power of alienation with the permission of the court– It is now well settled that a mutawalli can alienate the wakf properties with the prior sanction of the court. Thus, if a mutawalli wants to sell, mortgage or exchange the wakf properties, he must obtain prior permission of the court. An alienation made by a mutawalli without the prior permission of the court is not void ab intio. It is merely voidable. [Saheb Khan vs. Madar Sahab, 1954 Orissa 239] An authorized alienation can be challenged by any beneficiary it is not necessary to bring a representative suit. [Thangachi vs. Ahmed Hussain, 1957 Mad 194]
- Power of granting lease – Ordinarily, a mutawalli cannot grant a lease of the wakf property for more than three years if it is agricultural land, and more than one year if it is non-agricultural property. A lease for longer duration may be granted if the wakf-deed specifically permits him to do so. Leases for longer periods may be given with the prior permission of the court. The court has the power to sanction leases in the interest of wakf, even if the wakf-deed specifically prohibits a mutawalli to do so.
A mutawalli has no power of incurring a debt. A person who advances a loan to a mutawalli for carrying out the purpose of the wakf has no remedy against the wakf properties. Also no longer the mutawalli has the power to file a suit.
Removal of a Mutawalli
Once a wakf comes into existence and a mutawalli is appointed, the founder has no power of removing him unless such a power has been specifically reserved in the wakf deed. [Siddique Ahmed vs. Syed Ahmed, 1945 Cal 418]
The court has a power to remove a mutawalli. A court may remove a mutawalli on the ground of misfeasance, breach of trust or for his unfitness, or for any valid reason. The court’s power of removal is unfettered, and it can remove a mutawalli even if the settlor has specifically laid down that the mutawalli should not be removed. It is because the foremost duty of the court is to consider the interest of the wakf. Procedure for removing a mutawalli is by way of a suit in the District Court. [Md. Ali vs. Ahmad Ali, 1946 All 261 Cl 328]
By the wakf board– under section 64 of the Wakf Act 1995, the wakf board can remove the mutawalli from his office under the conditions mentioned therein.
Author – Mayank Shekhar
- Aqil Ahmad, Mohammedan Law, 23rd Edition
- Dr. Paras Diwan, Muslim law in Modern India, 12th Edition
- M. Hidayatullah, Mulla Principle of Mohammedan Law,19th Edition
- SCC Online
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