Manager of a Wakf: Mutawalli – Appointment, Duty, Powers, Removal
Mutawalli, is defined as the person appointed by a competent authority for managing and administering wakf. Thus, 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 an advantage of the usufruct. Unlike a trustee, he is not an owner of the property therefore he cannot sell the property. So, technically the position of Mutawalli under muslim law is different from that of a trustee. In Syed Mustafa Peeran Sahib vs State wakf board High court held that the definition of mutawalli includes a person who for the time being manages wakf property.Hence he is merely a manager or a supervisor.
A mutawalli has not only to bear the legal responsibilities but must perform the religious responsibilities as well. The position of mutawalli had been explained in the case of Syed Ahmad v. Hafiz Zahid, it stated that the position of mutawalli is not merely the manager or servant of waqf, and to carry out the directions of wakif as mentioned in the deed, but rather a significant one. He has the right to exercise his discretion and take decisions diligently while managing a wakf.
Who can be appointed as a mutawalli ?
Any person who is of sound mind, attained the age of majority age and is capable of performing the functions to be discharged under a particular wakf can be appointed as mutawalli. Any person whether male or female, muslim or a non-muslim may be appointed as a mutawallii.
Generally, a woman and a non-muslim can be appointed as mutawalli but where the Mutawalli is required to discharge the religious functions, a female, cannot be appointed as a Mutawalli, and the same thing applies in the case of non-muslims as well.(Sbahar Bano vs Aga Mohammad, 1907 )
A minor cannot be appointed as mutawalli but where the office of mutawalli is hereditary and after the death of the last mutawalli the person entitled to succeed that office is a minor , then in such cases the office may be held by minor.
Thus, the following persons are eligible for being appointed as mutawalli-
The settlor himself, his children and descendants, any other person even female or a non-muslim (except in wakf where religious and spiritual functions are to be performed.)
Who can appoint a mutawalli ?
A new mutawalli can be appointed by—
1.The founder of the wakf i.e. the wakif
The founder of wakf can lay down a scheme for the administration of the trust and for the successor to the office of mutawalli and may nominate successors by name, or can indicate the class together with their qualifications, from whom mutawallis can be appointed.
2. His executor
The executor of the waif is entitled to appoint a mutawalli if the wakif dies without appointing any mutawalli and also if the wakf deed is silent about the appointment to the post of mutawalli.
3. A mutawalli on his death bed as a successor for the time being
An existing mutawalli has no right to appoint his successor. But where an existing mutawalli finds that there is no possibility of appointment of his successor through wakf-deed or by the executor, or by the court of law and he is now already on his deathbed, then in such case he himself can appoint his successor.
4. By the court
When, a person appointed as mutawalli dies, or
When, the office of mutawalli is vacant and there is no provision in the deed of wakf regarding succession to the office, or
When, he refuses to act in the trust.
5. By Congregation
This means where the wakf is local such as a mosque or a graveyard then in this case mutawalli can be appointed by collective decision of the locality.
Powers and duties of Mutawalli
Being the manager and superintendent of the property he has the following powers and duties-
- To take all reasonable actions in good faith.
- To protect the interest of the wakf.
- To discharge all the public dues, and carry out all the necessary acts which are lawfully required.
- To appoint his successor on death bed, in case the founder and executor of wakf are dead and there is no other way to appoint the mutawalli.
- To carry out the directions of the board in accordance with the said act(Wakf Act) or any rule or order.
- To furnish such returns and supply such information which is needed by the board in accordance with the provisions of the Wakf Act.
- To allow inspection of waqf properties, accounts or records or deeds and documents.
Procedure to remove a Mutawalli
Once a mutawalli is appointed he cannot be removed from his post by the wakif unless such power has been provided under wakf-nama. The court has however, the power to remove the mutawalli on the grounds such as breach of trust, being unfit for the post, insolvency, negligence to perform the duties, any physical or mental incapacity, misfeasance or any other valid reason
A mutawalli can be removed from his post by way of a suit by the District Judge.
Under the Muslim Law , the moment a wakf is creted all rghts of property pass out of the wakif and vest in the Amighty. Mutawalli is the manager of the wakf, who’s job is to see that the intended beneficiaries are getting the benefits and the usufructs of the property are being utilized for valid purpose. Mutawalli under muslm law is that person who supervises or take over the management of a wakf. The mutawalli has no right in the property belonging to the wakf, the property is not vested in him and is not a trustee in the technical sense. He is merely a superintendent or manager (Vidya Varuthi v Balusami1921). He should not be a minor and should be of sound mind so that he is capable of performing the functions of the wakf.
Author: Naina Pathak,
Amity University Madhya Pradesh, 2nd year