Who is a Mutawalli –

When a waqf is validity constituted there arises the question of its

management and administration for which a Mutawalli is appointed.
He may be treated as the trustee of the property.

Anyone of any faith who is competent to ad minister property can

become a Mutawalli. Even a female can be Mutawalli.
But where religious duties are to be performed, a person of another
religion or woman may be disqualified.

Waqf property does not vest in the mutawalli but in God. He is not
the owner of the property. He is only a manager or superintendent
of the property.

He may be appointed by –

Waqf himself, Executor (in case of will), Mutawalli, The court, By

Waqf Board.

Functions of Mutawalli –

1. A Mutawalli can do everything that is reasonable and necessary

for the protection and administration of waqf property.

2. He can manage and supervise the property. He can sue for

possession of the waqf property where so required.

3. He can spend from the properties and utilize them to wards the
achievements of the objects of the waqf.

4. He can grant lease.

But regarding his functions there are certain limitation –

1. He can not sell mortgage, gift, eliminate the property without
permission of the court or waqf board.

2. He cannot delegate his powers or transfer his duties to any body

else unless authorized by the waqf deed or any custom.

3. He cannot borrow money for spending it on the beneficiaries but

he can do so if required for repair etc.,

4. He cannot spend on mere improvements of waqf properties.

5. Though he can grant a lease that should not be more than one
year in case of non-agricultural land unless the court gives sanction.

Removal of the Mutawalli –

A Mutawalli can be removed from office if –

He is an insolvent.

He is of unsound mind.

He is proved to be addicted to drinking liquor or drugs.

He deals fraudulently with the property.

He has failed to maintain regular accounts for two years.

He has been convicted of any offence of criminal breach of trust or

any other offence involving moral turpitude.

He has been convicted for more than once for more offence
punishable under section 61 of the Waqf Act – 1995.
He neglects his duties commits misfeasance and malfeasance and
nonfeasance.

He disobeys any lawful order made by the central Govt. state Govt. 
or Board.

He is employed as a paid legal practitioner on behalf of or against the

waqf property.

A mutawalli can be removed by the waqf himself by the waqf board

or by the court.

POWERS OF MUTAWALLI

POWER OF MUTAWALLI TO SELL OF MORTGAGE

A mutawalli has no power, without the permission of the Court, to
mortgage, sell or exchange wakf property or any part thereof, unless
he is expressly empowered by the deed of wakf to do so.

A mutawalli of a wakf,although not a trustee in the true sense of the

term, is still bound by the various obligations of a trustee. He like a
trustee or a person standing in a fiduciary capacity cannot advance
his own interests or the interests of his close relations by virtue of
the position held by him. The use of the funds of the wakf for
acquisition of a property by a mutawaIli in the name of his, wife
would amount to a breach of trust and the property so acquired
would be treated as wakf property.

A mutawaIli is not allowed to sell, mortgage or lease the wakf

property unless he obtains permission of Court which has the general
powers controlling the actions of mutawalli. Save and except as
recognized by any custom, the law does not favor the right to act as
mutawalli becoming heritable. When the mutawalli does, the wakif is
still alive, possesses the right to appoint another and in his absence
his curator and in the absence of both, the Court appoints the
successor mutawalli. Mutawalli has no ownership rights or estate in
the wakf property, he holds the property as a manager for fulfilling
the purpose of wakf. Even a Sajja Danishina, who has larger interest
in the usufruct has no right in the property endowed. These features
distinguish a mutawalli from a shebait. The elements which render
shebaitship a property are absent in mutawalliship and
mutawalliship is an office.

Power of sale - An instance of such power is a deed of wakf which

authorized the mutawalli to sell the property and utilize the
proceeds for the construction and maintenance of a resthouse at
Mecca (I). But a sale after the death of the Wakif by the mutawalli
according to the directions in a void wakf is void against the heirs.

Unauthorized mortgage cannot be partly valid- The Court removed a

mutawalli for mortgaging the wakf property, and appointed a new
mutawalli. When the new mutawalli sued to recover possession from
the mortgage, the latter claimed that the mortgage was valid as to
the portion of the property which was settled for the benefit of the
settler’s family. The Judicial Committee held that such a contention
was inconsistent with the character of a wakf under which all rights
of property pass out of the wakif and vest in Almighty God.

Retrospeclive confirmation. - It has been held in Calcutta that a

mortgage of wakf property, though made without the previous
sanction of the Court, may be retrospectively confirmed by the
Court. A mortgage without the previous leave of the Court is not void
ab initio. The Allahabad High Court acting on this principle validated
a usufructuary mortgage by a mutawalli. Both these cases proceeded
on the grounds that (1) the mortgage was necessary for the purposes
of the wakf, and (2) that the pledge was not of the corpus but of the
income. The Madras High Court has also decided that an alienation
which was for the benefit of the wakf can be retrospectively
confirmed. The same view has been taken by the Orissa High Court.

The court exercises the same powers as a Kazi and the orders of the
court are revisable under S. 115 of the Code of Civil Procedure. The
court can grant permission for transfer of property.

Unauthorized alienation – who can sue the muttawalli? - Where a

mutawalli makes an unauthorized alienation of wakf property, any
beneficiary has the right to bring a suit for possession. It is not
necessary to file a represeritative suit.

Unauthorized alienation and limitation.- The law as regards the

period of limitation for a suit to follow wakf property in the hands of
a mutawalli and to set aside unauthorized transfers of such property,
and to recover possession thereof from the transferee, was amended
and altered by Act I of 1929. The amendments consist of an addition
of para. 2 to s.10 of the original Act (Limitaion Act, 1908), and of the
insertion of new articles, being arts. 48B, 134A, 134B and 134C.

POWER OF MUTAWALLI TO GRANT LEASE

A mutawalli has no power to grant a lease of wakf property, if it be
agricultural, for a term exceeding three years, and, if non-
agricultural, for a term exceeding one year-
a. unless he has been expressly authorized by the deed of wakf to do
so; or
b. where he has no such authority, unless he has obtained the leave
of the Court to do so; such leave maybe granted even if the founder
has expressly prohibited a lease for a longer term.

A mutawalli cannot lease agricultural land for more than three years
and other land for more than one year without the permission of the
Wakf Board. A longer lease than the one permitted is not void, but
voidable at the instance of the mutawalli or the beneficiaries. It can
be validated by the Board even retrospectively.

A mutawalli executed a lease of property subject to a wakf for a

period exceeding one year without the sanction of the Court. It was
held that the test to apply would be:

(a) whether the transaction was for a legal necessity, or

(b) whether it was for the benefit of the wakf, or
(c) whether it was of the benefit of the beneficiaries.

If so found the sanction can be given retrospectively and the

transaction need not be struck down. The transaction is voidable and
not void ab initio.

Permanent lease. - It follows that a permanent lease cannot be

granted by a mutawalli without leave of the Court. Such leave must
be obtained on an application to the District Judge. A Munsiff cannot
validate such a lease by an order made in a pending suit. A single
judge of the Bombay High Court, however, has held that where a
mutawalli has leased wakf property for a long term without the
sanction of the Court, the Court has the power to sanction the lease
retrospectively if it is satisfied that the transaction is for the benefit
of the wakf. The lease however binds to mutawalli personally during
his lifetime and he cannot repudiate it and evict the lessee. Where a
mutawalli under a lease of Wakf property for agricultural purposes
granted a right of a permanent nature, it was held by the Patna High
Court that the lease was valid for the first three years and since ho
steps were taken to avoid the voidable lease, the lessee's possession
continued to be lawful and was not that of a trespasser.
CREDITOR’S RIGHT
As a mutawalli (unless authorized by the deed of wakf) has no power
of alienation without the leave of the Court, a creditor advancing
money to a mutawalli for carrying out the purpose of the trust has
no right to be indemnified out of the trust property. In this respect a
creditor of a mutawalli is in a worse position than a creditor of the
shebait of a Hindu endowment. A decree against A.B. "as mutawalli"
is not sufficient to create a charge on the wakf property of which A.B.
is mutawalli. A decree will not bind, the wakf property unless it
expressly says so; and in that case the proper procedure, in
execution is to appoint a receiver of the income of the endowment.