TABLE OF CONTENTS

Introduction…………………………………………………………..………2

Objective and Aim…………………………………………………….…….. 2

Research Methodology………………………………………………….……3

Who is Mutawali under Muslim Law?...........................................................3

Powers and Duty of Mutawali……………………………………………….3

When Mutawali is removed?...........................................................................5

Office of Mutawali……………………………………………………………6

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INTRODUCTION

In waqf, the appointment of mutawalli and nazir as trustees could be seen as a vital part because
they are responsible for managing, maintaining, protecting and developing the founder's estate
for the benefits of Muslim community.

Manager or custodian of waqf (charitable endowment). The mutawalli is chosen by the founder
of the waqf and is responsible for the administration of waqf property in the best interest of
beneficiaries. The mutawalli's first duty is preservation of property, then maximization of
revenues for beneficiaries. The waqf document usually mentions how the mutawalli is to be
compensated for this work, but if the document does not specify it, the mutawalli either works
on a volunteer basis or seeks assignment of compensation by the court, which is the authority
of reference with regard to all matters and disputes related to waqf. The mutawalli is often a
member of the founder's family, typically a descendant, enabling the family to maintain some
benefit from the waqf.

The literal meaning of the word waqf is ‘detention’. In the legal context, waqf means detention
of a property so that its produce or income may always be available for religious or charitable
purposes. When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter
becomes non-transferable. Meaning and various types of waqf are defined in this project. There
is an object behind making a wakf. Office of Mutawalli (manager) is very important. There are
many modes to create waqf, which are dealt with in this project. Wakf is binding and
enforceable by law, it has legal consequences which are dealt with in this project. The law of
waqf is “the most important branch of Mohammedan Law for it is interwoven with the entire
religious, social, and economic life of Muslims.

OBJECTIVE AND AIM

The project attempts to learn about the concept of Mutawalli under Muslim law, further to
analyse the socio-legal behaviour of Mutawalli.

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RESEARCH METHODOLOGY
Doctrinal method of research has been followed by the researcher for the project work where
the researcher is restricted to the secondary sources like books, internet, etc. Various textbooks
related to this topic were taken into consideration. The other major source of information is the
internet. The accessibility of technology has made it possible for students to research on any
topic irrespective of discipline. Articles available on the internet concerning the project have
been taken into account for this project through the internet. The main purpose was to find the
information which would simplify this topic and would help the readers in reaching a logical
conclusion. Major source of information for this project have been books and internet. Those
websites have been referred to which have information regarding the topic and have articles
deemed fit to explain the relevance of this topic.
Who is Mutawali under Muslim law?
Manager or custodian of waqf (charitable endowment). The mutawalli is chosen by the founder
of the waqf and is responsible for the administration of waqf property in the best interest of
beneficiaries. The mutawalli's first duty is preservation of property, then maximization of
revenues for beneficiaries. The waqf document usually mentions how the mutawalli is to be
compensated for this work, but if the document does not specify it, the mutawalli either works
on a volunteer basis or seeks assignment of compensation by the court, which is the authority
of reference with regard to all matters and disputes related to waqf. The mutawalli is often a
member of the founder's family, typically a descendant, enabling the family to maintain some
benefit from the waqf.

Therefore, besides legal duties, a mutawalli has also the religious and moral obligation to take
care of the waqf- property. Any mismanagement or negligence on his part may amount
disrespect towards God. The office of a mutawalli is similar to that of a trustee, but his powers
and functions are different.

Powers and duty of Mutawali

As a general rule, wakf property is inalienable. Unless expressly authorised so to do by the

terms of the deed of wakf, a Mutawalli has no power, without the sanction of the Court,

(1) To sell, mortgage or exchange wakf property; or

(2) To grant a lease (i) for more than three years, where the wakf property is agricultural, and
(ii) for more than one year, where the wakf property is non-agricultural.

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Where a Mutawalli has leased wakf property for a longer term without the sanction of the
Court, the Court has power to sanction the lease retrospectively, if it is satisfied that the
transaction is for the benefit of the wakf. (Zafarbhai Guljarbhai v. Chhaganlal Aditram1)

Abdul Rahim v. Narayan Das Aurora2:

The Court removed a Mutawalli for unauthorisedly managing a wakf property, and appointed
a new Mutawalli. The new Mutawalli thereafter sued to recover possession of the wakf property
from the mortgagee.

The mortgagee claimed that the mortgage was, in any event, valid, as a portion of the property
was settled under the deed of wakf for the benefit of the settlor’s family, as distinct from the
remaining portion, which was settled for the benefit of charity. The trial Court decreed the
mortgagee’s claim. The Mutawalli appealed from this decision. The Appeal Court held that the
new Mutawalli was entitled to recover possession of the whole wakf property from the
mortgagee.

Where an attempt is made to grant a mortgage for a purpose foreign to the necessary purposes
of the wakf, the whole mortgage fails. It cannot, for purposes of enforcement, be severed into
two distinct charges, one declared for pious uses on one part of the property, and another and
separate charge declared on other part for the use of the mortgagor only.

Masjid Shahidganj v. Shiromani Gurudwara Prabandhak Committee3:

In 1722, a mosque was built by X and dedicated as a wakf. Mutawallis were appointed, and
they took possession of the mosque. After about 60 years, the mosque fell into disuse, and came
into the possession of a Sikh Gurudwara, which continued the possession till 1935. In 1935, a
suit was filed by some Muslims against the Sikh Gurudwara, claiming possession of the
mosque and the right of worship in it.

It was held that the mosque, having been possessed by the Sikh Gurudwara adversely to the
wakf for more than 12 years, the Muslims’ right to possession for the purpose of the wakf had
come to end under Art. 144 of the Limitation Act and their title become extinct under S. 28 of
that Act.

1
43 Bom. L.R. 854.
2
(1923) 50 I.A. 84
3
(1940) 67 I.A. 251

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When Mutawali is removed?

Even though the founder may have expressly directed that a Mutawalli should not be removed
in any case, he may be removed from his office by the Court, if he is guilty of misfeasance or
breach of trust or is found to be otherwise unfit to hold the office.

Thus, the Court will remove a Mutawalli in the following cases:

1. If he denies the wakf character of the property, and sets up an adverse title to it in
himself. (Fazal v. Zain-ul-ab-din, 13 Lah. 162); or
2. If he neglects to repair the wakf premises, and allows them to fall into disrepair,
although he has sufficient funds in his hands. (Naziuddin v. Amir Hasan4); or
3. If he knowingly and intentionally causes damage or loss to the wakf or misdeals with
trust property; or
4. If he is insolvent. (Mahommedally v. Akbarally5)

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.

4
A.I.R. 1934 Pat. 443.
5
36 Bom. L.R. 386.

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Office of Mutawali

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 the see that the usufructs of the property are
being utilized for valid purpose 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.

In Ahmad Arif vs Wealth Tax Commissioner, SC held that a mutawalli has no power to sell,
mortgage, or lease wakf property without prior permission of the Court or unless that power is
explicitly provided to the mutawalli in wakfnama.

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. In Shahar Bano vs Aga Mohammad, Privy
Council held that there is no legal restriction on a woman becoming a mutawalli if the duties
of the wakf do not involve religious activities.

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 –

1. It should not disregard the directions of the settler but public interest must be given more
importance.

2. Preference should be given to the family member of the wakif instead of an utter stranger.