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.[1]
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[2] – 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 –
-founder,
-the executor of the founder, &
-mutawalli on his death bed.
-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 [3]
Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights:
-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.
-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.
-He is competent to file a suit to protect the interests of the wakf.
-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.
-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.[4]
Removal of a mutawalli [5]
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be removed in the following situations:
-By Court
-if he misappropriates wakf property.
-Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.
-Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs Mahmood Hasan, SC held that using wakf money to buy property in wife’s name is such breach of trust as is sufficient ground for removal of mutawalli.
-He becomes insolvent.
-By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office under the conditions mentioned therein.
-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 wakf deed, he can still remove the mutawalli.
CASE LAWS
Garib Das and Ors. v. Munshi Abdul Hamid and Ors.[6]
Facts: One Tassaduk Hussain was the owner of the disputed house had admittedly executed a deed of wakf on June 21, 1914, in respect of the same for the benefit of a mosque and Madrasa at Nathnagar and had the same registered. In terms of the deed, the donor was to remain in ownership of the house as Mutawalli and his wife was to be the Mutawalli after his death. The document provided that after the death of both the husband and wife the Mutawalli would be elected by the panchas of the Muslim community of Nathnagar and so long as the donor and his wife were living they would maintain themselves from the income of the property and spend the balance left for the mosque and the Madrasa. Tassaduk Hussain executed and registered three deeds on 10th December 1949 by one of which he purported to cancel a gift deed dated November 4, 1939, executed in favour of some of his relations in respect of the disputed house. By the second document, he cancelled another registered deed of gift dated August 2, 1948, executed in favour of another relation of his in respect of the identical property. And by the third document, he purported to cancel the deed of wakf of 1914. Thereafter he executed and registered three separate sale deeds on March 27, 1949, one in favour of the appellant Garib Das, a second in favour of Shamlal and a third in favour of Gobind Lal. All these three deeds were in respect of portions of the disputed property. Tassaduk Hussain died in July 1950. The suit was filed by the first plaintiff as the elected Mutawalli of the wakf created by Tasaduk Hussain joining with him plaintiffs 2 and 3 as members of the Sadar Nathnagar Masjid Committee. Garib Das, Shyam Lal and Gobind Lal, the alienees from Tasaduk Hussain have impleaded as defendants the first party. The first three defendants were described as tenants in the suit properties. The plaintiffs claimed to set aside the deeds in favour of the said persons on the ground that as a valid wakf had already been created in favour of the mosque and Madrasa and had been acted upon, the deed of cancellation of December 10, 1949, and the sale deeds in favour of the first three defendants could not affect the wakf. A prayer was also made that as the said three defendants who were tenants had repudiated their tenancy they had forfeited the same and they had become trespassers and were liable to eviction as such.
Lower Court Proceedings: The Subordinate Judge who tried the suit found the deed or wakf to be invalid holding, inter alia, that there could be no reservation for the benefit of the donor in the case of an endowment purportedly in favour of a mosque. He also held that the endowment was bad for uncertainty on the ground that the mosque and the Madrasa mentioned in the wakf could not be identified and that Tasaduk Hussain never had any intention to create a wakf.
High Court: The High Court’s conclusions were:
-That Tasaduk Hussain had created the wakf in question in 1914 and he continued to be the mutawalli of the same until his death.
-The wakf was not a sham or illusory transaction.
-It was not bad for uncertainty or vagueness.
-It was not bad or void on account of reservation of some benefit in favour of himself and his wife.
Supreme Court – Appeals granted.
Ratio– The founder of a wakf may constitute himself the first mutawalli and when the founder and the mutawalli are the same people, no transfer of physical possession is necessary. Nor is it necessary that the property should be transferred from the name of the donor as an owner into his name as mutawalli. An apparent transaction must be presumed to be real and the onus of proving the contrary is on the person alleging that the wakf was not intended to be acted upon.
Punjab Wakf Board v. Shakur Masih [7]
Facts: The admitted facts are that Najaf Khan was the owner of the properties, namely, houses and shops situated in Jutog. He had executed a will on August 29, 1949, bequeathing all his properties to his son’s mother-in-law, namely, Smt. Mousemat Kariman. He added a note to the Will on dated 29-9-1949 stating thus: “After the death of Masomat Kariman, my entire property would become wakf and the income from that would be spent for the maintenance of the Mosque at Jatog. Nobody shall have the right either to mortgage or sell these properties.” The appellant filed the suit for declaration that it is a Wakf property and the respondent has no manner of right whatsoever. All the Courts below have concurrently held that the wakf has not been created by Najaf Khan and, therefore, the will is void and the wakf thereby has not been created. The question is; whether the view taken by the Courts below including the High Court is correct in law?
Supreme Court: Appeal Dismissed. The Hon’ble court relied on Chapter XII of the principles of Mahomedan Law, Nineteenth Edition edited by M. Hidayatullah, former Chief Justice of this Court, it is stated that a 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. Under Section 174, the dedication must be permanent. Under Section 176, the subject to wakf must belong to the wakif, namely, the property dedicated by way of wakf must belong to the wakif (dedicator) at the time of dedication. Under Section 191, contingent wakf is not valid. It is essential to the validity of a wakf that the appropriation should not be made to depend on a contingency.
Ratio: that bequest creating a wakf contingent upon the lifetime of a lady is invalid and therefore the contingent wakf is not valid as per Section 191 of the principles of Muslim Law
Ahmed Ariff v. CWT[8]
Wakf means “the tying up of property in the ownership of God, the Almighty
and the devotion of the profits for the benefit of human beings”.
Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan[9]
The ownership of the wakf property has no jural conception with any exactitude and the corpus is tied down and is made non-alienable. Only the usufruct and the income from the corpus of the wakf property is available for carrying out the objects of the wakf.
Mohammad Sabir Ali v. Tahir Ali[10]
No formal dedication or use of the word “wakf or an express transfer of the corpus of the properties to God is necessary for constituting a wakf, the dedication of properties to purposes recognised by Mohammedan law as religious or charitable may be inferred and that in itself will give rise to a wakf.
Syed Mohd. Salie Labbai v. Mohd. Hanifa[11]
Following are the essential conditions for the creation of a valid wakf dedication for a mosque of public nature.
-The founder must declare his intention to dedicate property for the purpose of a mosque,
-The founder must divest himself completely from the ownership of the property.
-The founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque.
Allaha Rakhi v. Shah Md. Abdul Rahim[12]
Creation of a valid wakf leads to simultaneously passing of all rights of property out of the wakf and its vesting in God Almighty. The person in the administration of the wakf, whether mutawalli, Sajjadanashin, or mujawar, or known by any other name, is merely a manager of the wakf. He is not a ‘trustee’ in the technical sense of the term as understood nor is any property belonging to the wakf ‘vested’ in him.
A. Namazie Endowment v. CIT[13]
Where reading the relevant clauses of a deed of the wakf, it is held that the wakf was created for the benefit of the wakif s poor relations and, therefore, it is not a wakf created for charitable or reli¬gious purposes eligible for an exemption, the enactment of the Wakfs Act, 1954 (29 of 1954) can have no impact on the character of such wakf for the purposes of the Income Tax Act. Even the fact of inclusion of such wakf in the list of wakfs published in the Gazette as per the provisions of that Act would not change the character of such wakf.
Conclusion: Wakf is detention which is permanent and binding and enforceable by law also, any person interested may seek a remedy in the Civil Court. Office of mutawalli is very important in waqf, power can be exercised when there is a clear vacancy of mutawalliship or there is a dispute as to competence or eligibility of existing mutawalli. A Muslim wakf is distinguished from an English trust or a Hindu endowment of dharma.
[1] I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009, Allahabad)Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010, pg no-123.
[1] AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-50-4.PG NO- 326
[2] AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-50-4.PG NO- 327
[3] AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-50-4 PG NO-328
[4] AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-50-4.PG NO- 326.
[5] I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009, Allahabad)Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010, PG NO-134. AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-50-4, PG NO-320
[6] AIR 1970 SC 1035.
[7] AIR 1997 SC104, AIR 1996 SCW 4261, 1996 (4) CurCC 299, JT 1996 (9) SC 460, 1997 (2) LJR 16, 1997 MarriLJ 125, 1997 (2) RecCivr 42, 1996 (11) SCC 245, 1996 (3) SCJ 602, 1997 (1) UJ 453 (SC).
[8] AIR1966 59 ITR 230 Cal.
[9] AIR1978 AIR 1362, 1978 SCR (3) 886.
[10] AIR 1957 All 94.
[11] AIR1976 AIR 1569, 1976 SCR (3) 721.
[12] AIR(1934) 36 BOMLR 408.
[13]AIR (1988) 174 ITR 58 (Mad.).
