The manager or superintendent of the waqf is known as the 'Mutawalli'. Such a nominee has no powers to sell or exchange or mortgage the waqf property without the prior permission of the court, unless specifically empowered to do so by the waqf deed.

Under Muhammadan law, the moment a waqf is created, all proprietary rights pass from the waqif and are vested in God; the nature of a property once vested in God cannot be changed, it thereafter belongs to God. The Mutawalli then takes care of the property. A Mutawalli is more like a manager than a trustee, and when it comes to waqf property, he has to see to it that the beneficiaries get the benefit of the usufruct.

All the beneficiaries are entitled to the benefits equally subject to the special authority granted by the Mutawalli. The statement in Mulla's "Mahomedan Law" that "the Mutawalli is not a mere superintendent or manager, but practically speaking the owner" is incorrect. [Bibi Saddiqa Fatima v. Saiyed Mohd. Mahmood Hasan, AIR 1978 SC 1362]

Who can be appointed Mutawalli?
Any person who has reached the age of majority, is of sound mind and is capable of performing the functions to be performed under a particular waqf can be appointed as a Mutawalli of waqf property. A foreigner cannot be appointed as trustee of an estate in India.

The waqf's founder's intentions for creating the waqf must dictate the succession of the Mutawalli office, and no other documentation may contradict this intention.

The Supreme Court observed that although women can also hold the office of Mutawalli under Muhammadan law, but if the waqif intended to create Mutawalliship for the benefit of male descendants only, the female descendant cannot stake any claim to the Mutawalliship of the waqf property. A bench comprising Justice NV Raman, Justice Mohan M Shantanagoudar and Justice Ajay Rastogi observed.
But in case a waqf is created without appointing a Mutawalli, then the following persons are eligible to appoint a Mutawali:

• executor of the founder;
• Mutawalli on his deathbed;
• Court of Justice, which will be governed by the following rules:

1. If possible, the court should not ignore the settlor's instructions.
2. A family member of the settler should have priority over a complete stranger.
3. The court holds discretion in cases where there is a conflict between a direct descendant and non-descendant of the founder.

In certain circumstances, the congregation may also appoint a mutawalli.

Any person of sound mind who has reached the age of majority can be appointed as a Mutawalli. [Syed Hasan v. Mir Hasan (1917) 40 Mad 543]

A minor may be a Mutawalli where the office of Mutawalli is hereditary and the person entitled to succeed is a minor, or where the line of succession is established in the waqfnama and the office falls to the minor. [Piran v. Abdool Karim, (1891) 19Cal 2]

Both male and female of any religion can be appointed as Mutawalli. Mutawalli must be able to perform specific duties under the waqf. If religious duties or spiritual functions are part of the duties of a Mutawalli, a woman and a non-Muslim cannot be appointed Mutawalli [Shahar Bano v. Aga Mahommad (1907) 34 I.A. 46]. Thus, a woman or a non-Muslim cannot be a Sajjadanashin (spiritual head), a Khatib (one who reads the sermon), a Mujawar of a dargah, an Imam of a mosque (one who leads a congregation) or a Mullah. A foreigner cannot be a trustee of any waqf property in India.

Powers and Duties of Mutawalli

In charge of the usufruct of the property, as the waqf's manager, the duties and powers of the mutawalli are given below:

• The superintendent of waqf is typically the Mutawalli responsible for management.
• The Mutawalli, who acts as both a Manager and Supervisor, lacks ownership of waqf property. Despite performing duties similar to a trustee, he is not officially recognized as one.
• The duties of the Mutawalli involve respecting the waqf property diligently and with honesty. It is imperative that he discharge these responsibilities with care.
• He is expressly allowed to alienate the waqf property but only if it's outlined in the waqf deed.
• Establishing a lasting property lease as a Mutawalli requires express permission from either the court or the waqf deed. Tenants, on the other hand, can have a lease for up to three years. It should be noted that non-agricultural properties cannot be rented for more than one year.
• In the waqfnama, the compensation of a Mutawalli is established. If the document does not provide this information, the court has the authority to establish his earnings. His salary must not surpass 1/10th of the waqf property income.
• The process of selecting a Mutawalli begins with the waqif appointing the first one. In some cases, the waqif may decide to serve as Mutawalli themselves. Upon this initial appointment, the waqif has the option to name their preferred choices for future Mutawallis. Alternatively, they may leave this decision in the hands of the current Mutawalli. In the event that the office of Mutawalli becomes vacant, the waqif or their executor has the authority to select a successor. It's worth noting that in some scenarios, even a departing Mutawalli can name their own replacement.
• The outgoing Mutawalli might not be able to act, in which case a successor can be appointed by the court if the waqif or his successor is unavailable. However, it's worth noting that if the waqif's family has any relatives, a stranger will not be chosen to serve as Mutawalli.
• Such heredity is recognized for the office of Mutawalli if it is customary, but it is not inherently passed down.
• Mutawalli's office cannot be passed on to another individual.
• The dismissal of a Mutawalli by the waqif is only permissible if stated in the waqf deed. Once selected, the Mutawalli cannot be easily removed.
• A de facto Mutawalli can act as a proper Mutawalli in absence of one. Generally, the person who survives remains as Mutawalli when there are two.
• A Mutawalli must possess a sound mind and be of legal age. Gender is not a factor unless the waqf is for religious purposes, in which case a female cannot serve as Mutawalli. It's possible for a woman to be appointed as Mutawalli otherwise.
• Exceptional instances exist where non-Muslims can become a Mutawalli. However, in most cases, the role is held by a Muslim.
• For possession of the waqf property and a declaration of Mutawalli status, a lawsuit can be filed by the Mutawalli.
• The attachment of a waqf's property isn't permissible during execution proceedings.
• The waqf property can be alienated by the Mutawalli, with the court's approval.
• Adverse possession by the Mutawalli over the waqf is prohibited.
• For the waqf's optimal outcome, the Mutawalli has the ability to use the usufructs. Acting in good faith, he can execute whatever measures needed to ensure that the final recipients reap the full benefits of the waqf.
• To either borrow funds or sell assets, approval from the court can be obtained by the Mutawalli through the demonstration of appropriate justification or urgency.
• Initiating a lawsuit is an available option for safeguarding the interests of the waqf.
• If the remuneration isn't satisfactory, the Mutawalli may ask the court to increase it, but he is entitled to the remuneration provided by the waqif.
• A loan given to a Mutawalli for waqf purposes cannot be recovered through waqf properties since Mutawalli is unable to accumulate debts. Additionally, Mutawalli's ability to litigate has been restricted.

Removal of Mutawalli
In accordance with the provisions outlined under Section 64 of the Waqf Act, 1995, the Waqf Board is empowered to dismiss a Mutawalli from their position if certain conditions are met. These conditions include the Mutawalli having multiple convictions under section 61 or being convicted of offences such as criminal breach of trust or moral turpitude, with no reversal or full pardon.

Additionally, removal may occur if the Mutawalli is of unsound mind, an undischarged insolvent, addicted to substances, employed as a paid legal practitioner in waqf matters, fails to maintain accounts or submit statements, is directly or indirectly involved in waqf property leases or contracts, continuously neglects duties, disobeys lawful orders, or misappropriates waqf property.

The dismissal of a Mutawalli from office, as per the statute, does not impact their personal rights related to waqf property or their status as a beneficiary or sajjadanashin. Conducting a certain inquiry and obtaining a two-thirds majority vote is a prerequisite for the Waqf Board to take any action. If a Mutawalli objects to being given the removal order for specific grounds, they have the option of appealing to the Waqf Tribunal within a month. The decision of the Tribunal will be the final one. For that which an inquiry is started, the Mutawalli can be suspended by the Waqf Board for a maximum of ten days, but they must be granted a just chance to speak.

Should the Mutawalli choose to seek help from the Tribunal, then the Board can call upon a receiver to oversee the waqf until the appeal comes to a close, securing the safety of customary and spiritual privileges. Upon removal, the Waqf Board may instruct the former Mutawalli to surrender possession of the waqf property to the Board or an authorized officer, or to a designated person or committee appointed as the new Mutawalli. Furthermore, a Mutawalli removed under this provision is ineligible for reappointment for a five-year period from the date of removal.

Once a waqf 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 waqf deed [Siddique Ahmed v. Syed Ahmed, 1945 Cal 418]. For reasons deemed appropriate, a Mutawalli may be removed by the court, due to misconduct, dishonesty, or overall incompetence.

Even if the settlor has stated otherwise, the court retains the power to remove the Mutawalli as necessary to protect the interests of the waqf. To accomplish this, a lawsuit in the District Court may be initiated. Ultimately, the court's duty is to prioritize the waqf's welfare in all decision-making processes. [Md. Ali v. Ahmad Ali, 1946 All 261 Cl 328]

Conclusion
A person called the Mutawalli takes care of waqf property. They manage the property based on the donor's, or waqif's, rules. They make certain the property serves its charitable purpose, like aiding hospitals, schools, or other charities. They make sure the property is in good condition, earns money, and gives funds to certain beneficiaries.

The Mutawalli also runs the waqf property honestly and carefully for the community's needs. They've got this job because they're skilled, honest, and focused on the waqf's charitable vision. As the trustee of these assets, the Mutawalli works hard to manage them right.

References:

1. Mahomedan Law, Mulla, LexisNexis
2. Family Law – II, Usha Jaganath Law Series
3. Mohammedan Law, Aqil Ahmad, Central Law Agency

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565