What is a Wakf? Who can be appointed a Mutawalli of a wakf? Discuss the functions and duties of a mutawalli. How the services of a mutawalli be terminated?

Question: What is a Wakf? Who can be appointed a Mutawalli of a wakf? Discuss the functions and duties of a mutawalli. How the services of a mutawalli be terminated? [BJS 2006]

Find the question and answer of Muslim Law only on Legal Bites. [What is a Wakf? Who can be appointed a Mutawalli of a wakf? Discuss the functions and duties of a mutawalli. How the services of a mutawalli be terminated?]

Answer

The Law of `Waqf' is the most important branch of Muslim Law, as it is interwoven with the entire religious life and social economy of Muslims. Waqf in its literal sense means detention or stoppage. According to the accepted doctrine of `Hanifi' school `Waqf' is the detention of things in the implied ownership of almighty God in such a manner that its profits may revert to or be applied to the benefit of His creature."

The most comprehensive definition of `Waqf' is given under section 2 of `Mussalman Waqf Validating Act 1913' as "Waqf means the permanent dedication by a person possessing Mussalman faith of any property for any purpose recognized by Mussalman law as religious pious or charitable.

According to Hanifi school essentials for creating valid Waqf are

(a) Permanent dedication of any property, dedication implies an intention to create Waqf and

(b) Declaration to this effect. Therefore mere declaration to create Waqf by the owner is sufficient to complete Waqf. Neither appointment of Mutawali nor delivery of possession to him is essential,

(c) Dedicator (Waqif) should be a person professing Mussalman faith and of sound mind and not a minor,

(d) Dedication should be for the purpose recognised by Mussalman law as religious, pious and charitable.

In Mohd. Shah v. Fashiuddin, AIR 1956 SC 713, there must be a substantial dedication of the usufruct of property to religious pious or charitable aims as understood by Muslim law. Such dedication must be perpetual and the subject of Waqf may be any tangible property capable of being used without being consumed.

According to Shia Law, four conditions are required for valid `Waqf':

(i) there must be perpetual dedication

(ii) it must be unconditional

(iii) Possession must be given of thing appropriated (Unlike Sunni Law under which mere declaration is sufficient).

(iv) Waqif should not reserve any benefit or interest in a dedicated property.

Office of Mutawalli

Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He is only a superintendent whose job is to see that the usufructs of the property are being utilized for valid purposes as desired by the wakif. He has to see that the intended beneficiaries are indeed getting the benefits. Thus, he only has limited control over the usufructs.

Who can be a Mutawalli?

A person who is a major, of sound mind, and who is capable of performing the functions of the wakf as desired by the wakif can be appointed as a mutawalli. A male or female of any religion can be appointed. If religious duties are a part of the wakf, then a female or a non-muslim cannot be appointed.

Who can appoint a mutawalli?

Generally, the Wakif appoints a mutawalli. He can also appoint himself as a mutawalli. If a wakf is created without appointing a mutawalli, in India, the wakf is considered valid and the wakif becomes the first mutawalli in Sunni law but according to Shia law, even though the wakf remains valid, it has to be administered by the beneficiaries. The Wakif also has the power to lay down the rules to appoint a mutawalli. The following is the order in which the power to nominate the mutawalli transfers if the earlier one fails –

1. Founder,

2. Executor of the founder, &

3. Mutawalli on his death-bed.

4. The Court, which should follow the guidelines –

• It should not disregard the directions of the settler but public interest must be given more importance.
• Preference should be given to the family member of the wakif instead of an utter stranger.

Powers of a Mutawalli 

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

1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf. He can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the wakif may give such rights to the mutawalli by explicitly mentioning them in wakfnama.

2. He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if there is an urgent necessity.

3. He is competent to file a suit to protect the interests of the wakf.

4. He can 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 exceed the term by permission of the court.

5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court to get an increase.

Termination of a Mutawalli

Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be removed in the following situations –

1. By Court 

1. If he misappropriates wakf property.

2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.

3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima v. Mahmood Hasan, 1978 AIR 1362, SC held that using wakf money to buy property in the wife's name is such a breach of trust as is sufficient ground for the removal of mutawalli.

4. He becomes insolvent.

2. By Wakf Board

Under Section 64 of the Wakf Act 1995, the Wakf board can remove mutawalli from his office under the conditions mentioned therein.

3. By the Wakif

As per Abu Yusuf, whose view is followed in India, even if the wakif has not reserved the right to remove the mutawalli in the wakf deed, he can still remove the mutawalli.

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