Define Wakf and Explain who can be appointed Mutawalli. Whether a female can be appointed Mutawalli?

Question: Define Wakf and Explain who can be appointed Mutawalli. Whether a female can be appointed Mutawalli? [BJS 1987]

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Answer

Wakf as defined in the Wakf Act,

"Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable ."

The above is the definition of Waqf as given in the Mussalman Wakf Validating Act, No. VI of 1913, Section 2. That Act came into force on the 7th of March 1913. It has a retrospective effect and applies to all wakfs, whether created before or after that date. Referring to the above definition, the Judicial Committees observed that it was a definition for the purposes of the Act, and not necessarily exhaustive.

The definition given under Section 2 of the Mussalman Wakf Validating Act, 1913 has been slightly changed by the Wakf Act, 1995. Section 3(r) of the 1995 Act, lays down that—

Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes—

(i) A wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) "grants", including mushrut-ul-khidmat for any purpose recognised by the Muslim Law as pious, religious or charitable; and

(iii) A wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable, and "Wakf" means any person making such dedication.

If we look at the word 'Waqf', in its literal sense it is referred to as 'detention', 'stoppage' or 'tying up'. According to the legal definition, it means a dedication of some property for a pious purpose in perpetuity. The property so alienated should be available for religious or charitable purposes. Such a property is tied up forever and becomes non-transferable.

Mutawalli for Managing Wakf

The manager or the superintendent of the waqf is known as the 'Mutawalli'. Such a person appointed has no powers, either to sell or exchange or mortgage the waqf property, without the prior permission of the court, unless he has been empowered by the waqf deed expressly to do so.

Any person who has attained the age of majority, is of a sound mind and is capable of performing the functions to be discharged under a particular waqf, can be appointed as a mutawalli of the waqf. A foreigner cannot be appointed as the trustee of a property in India.

Being the manager of the wakf, he is in charge of the usufruct of the property. He has the following rights –

(i) He has the authority to use the usufructs to the best interest of the wakf. He is authorised to take all reasonable actions in good faith to ensure that the end beneficiaries are able to enjoy all the benefits from the wakf. As he is not the owner of the property, therefore he is barred from selling the property. However, he could be bestowed upon such rights by the wakif by the explicit mention of them in waqfnama.

(ii) He can take authorisation from the court to sell or borrow money by showing the existence of appropriate grounds or the existence of urgency.

(iii) He can file a suit to protect the interests of the wakf.

(iv) He also has the power to lease the property for the agricultural purpose for less than three years and for the non-agricultural purpose for less than one year. He can get the term extended with due permission from the court.

(v) He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court for getting it enhanced.

Female as Mutawali

In Mohd. Bhai v. Wazirbi, AIR 1947 Nag. 31, it is held that it is competent for the founder of the wakf to appoint his wife as successor after his death. In that case, the question that came for consideration before Nagpur High Court was that the property has to be managed by the wife and income therefrom was to be utilized for the Mosque. The question was whether the plaintiff can act as Mutawalli. The learned Judge did not find any disqualification for a woman to act as mutawalli.

In Md. Eshaque v. Md. Amin, AIR 1948 Cal. 312, the question came for consideration while considering the question of descendants, whether the claim of daughters also could be considered. The Division Bench held that the daughters are also entitled to be considered as Mutawalli and there is no prohibition under Muslim Law for considering their claim.

A Division Bench of our High Court in the decision reported in M.M. Hussain Faroki v. S. Abdul Muq, AIR 1942 Mad 482, is held thus:

"In 41 Mad. 1033, Abdur Rahim and Seshagiri Ayyar, JJ. held that as decided by the Privy Council, there is no general rule of Mohamedan Law prohibiting a woman from holding a religious office and that such a religious office can be held by a woman under the Mohamedan Law unless there are duties of a religious nature attached to the office which she cannot perform in person or by deputy. The learned judges emphasise that such, a prohibition arises, if at all, from local custom or usage and not by an injunction of Mahomedan religion or law. They held that the burden of establishing that a woman is precluded from holding a particular office was on those who plead the exclusion, Abdur Rahim, J. seems to have considered that the decision in 3 Mad. 95 did not go beyond the facts in that particular case and on the evidence the court must be taken to have held that the woman concerned could not hold that office of Mujawar. The question of whether the office could be performed by a deputy was not discussed. It seems to me that the decisions of this Court in 41 Mad. 1033 and of the Judicial Committee in 34 Cal. 118 are comprehensive. It is difficult to think of any religious office that a woman cannot hold if she is permitted to hold it by a deputy. Neither of the learned counsel was able to give an example of any religious office which could not be performed through the medium of a deputy. As a matter of convenience, there is nothing to be said against the notion once it is accepted that religious office descends because it is obvious that the possibility that the deputy specially nominated by a woman may satisfactorily perform the office is at least equal to the possibility that the person to whom the office descends may be equally qualified. It will therefore appear to be the law that unless it can be shown by custom or usage that a special office depending upon the personality."

In a case where a woman was the founder of a  waqf for a mosque, and other religious and charitable purposes, and appointed herself first mutawalli and directed that two male relations should be mutawallis after her, and then directed that-their legal heirs should exceed as heirs mutawallis, the Calcutta High Court held that the expression 'legal heirs' did not exclude female heirs. (Waris Ali v. Shaikh Shamsuddin, 63 Cal. LJ 573)

From the above decisions, it is clear that there is no prohibition for a woman acting as Mutawalli of the Wakf.

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