The Concept Of Mutawalli Of The WAQF ACT, 1955

Concept of Mutawalli

  • According to Muslim law, once a wakf is formed, all property rights pass from the wakif to God. However, someone who can look after and maintain the property is needed. The person who supervises or takes over the management of a wakf is known as a Mutawalli in Muslim law. A basic understanding of wakf is needed before proceeding.
  • Mutawalli is the person in charge of wakf's management. In Shia Law, the appointment of a Mutawalli is required. Sunni Law, on the other hand, does not impose any obligations. Under Islamic law, a Mutawalli has no claim to the wakf's lands. He does not own the land. Under Muslim law, the status of Mutawalli is distinct from that of a trustee. He is merely a boss or manager.

Who can be a Mutawalli

  • A Mutawalli can be someone of sound mind and majority age who is capable of performing the functions that must be performed under a specific wakf. A minor, on the other hand, maybe a Mutawalli if the office is hereditary or if the line of succession is established in the wakf-name and the office is held by a minor.
  • A woman may be appointed as a Mutawalli in most cases, but where the Mutawalli is also expected to perform religious duties, a female, as well as a non-muslim, cannot be appointed.

Who can appoint a Mutawalli

  • Founder: The founder of a wakf has complete appointment control. In addition, he has the power to nominate himself as the first mutawalli. He may also develop guidelines for the appointment of mutawallis in the future. He may also appoint a stranger as mutawalli on his deathbed.
  • Mutawalli: If the founder and wakif are both deceased and there is no written succession plan in place, the current mutawalli will nominate his successor on his deathbed. In terms of fitness, however, he lacks certain authority. Whether one of the joint Mutawallis dies and the wakf remains silent on what to do if one of them dies, the office would be passed down by survivorship.
  • The court will appoint a Mutawalli in cases where the creator has not appointed a Mutawalli or cannot be appointed as mutawalli. The District Court has the authority to designate. The court follows a few laws, including the following:- The court disregards the settler's course. A settler member should be preferred over a stranger.
  • Where a wakf is strictly local, such as a graveyard or a mosque, the Mutawalli may be appointed by a locality's collective decision.

Duties of mutawalli

A Mutawalli is in charge of wakf property management and administration. He has complete control over the use of wakf property for the reason for which it was developed. He may only alienate property with the court's permission. It is merely voidable even without prior court approval. Mutawalli could file a suit relating to a wakf before Wakf Act, 1954 came into effect. However, Wakf Board now wields this force.

  • As the wakf's manager, he is responsible for the property's usufruct. He is granted the following privileges:
  • He has the power to use the usufructs in the wakf's best interests. He is authorized to take all necessary steps in good faith to ensure that the wakf's end beneficiaries receive all of the wakf's benefits. He is unable to sell the property because he is not the owner of the property. The wakif, on the other hand, could bestow certain rights on him by explicitly mentioning them in the waqf name.
  • By demonstrating the presence of sufficient grounds or urgency, he may obtain court permission to sell or borrow money.
  • He will file a lawsuit to defend the wakf's interests.
  • He also has the authority to lease the land for less than three years for agricultural purposes and for less than one year for non-agricultural purposes. With the proper approval from the judge, he may have the term extended.
  • He is entitled to remuneration in accordance with the wakif's provisions. If the remuneration is insufficient, he will petition the court to have it increased.

Removal of Mutawalli

The creator cannot remove Mutawalli after he has been named unless such power has been granted under wakf-name. A Mutawalli may be removed by the court. A court can remove Mutawalli for any legitimate cause, including misfeasance, breach of confidence, or unfitness.

  • By the Court – Once a mutawalli has been named, the waqif cannot dismiss him. The Mutawalli, on the other hand, can only be excluded by the Court on the following grounds.
  • He disputes the property's waqf status and establishes an adverse title to it in his own name.
  • He neglects to repair the waqf premises, despite having sufficient funds, and allows them to fall into disarray; he knowingly and deliberately causes harm or loss to the waqf land or commits a breach of trust.
  • The Mutawalli is declared bankrupt.
  • According to Section 64 of the Wakf Act, 1995, the Wakf Board has the power to dismiss the Mutawalli from his role if no requirements are met.
  • According to the Wakif – This definition is seen from a variety of perspectives. Even if the wakif has not claimed the right to delete the mutawalli in the wakf deed, the mutawalli may be removed, according to Abu Yusuf.
  • Imam Mohammed, on the other hand, argues that the wakif cannot do so unless there is a reservation.
  • Waqf Property Management - De Facto Mutawalli- If a person who has not been authorized to act as a mutawalli by the waqif or the Court assumes the status to manage the property, he becomes a "trustee de son tort" and is liable for the property.
  • If there is a provision in the waqf deed exempting the mutawalli from liability, it must be followed. At any point, a beneficiary has the right to demand an account from a Mutawalli. A beneficiary of such rights has the right to assert his share of income and may sue for it.

Click here for Formation and Working of the WAQF Council

 

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