(C) How can a Mutwalli be removed from his office?
(D) Can a person make a valid waqf in favour of his children and family i.e. waqf-alal-aulad?
Powers and Functions of Mutawalli
Here we will learn the topic Powers and Functions of Mutawalli in detail.
Powers and Functions of Mutawalli
(A) Powers and Functions of Mutawalli
The mutawalli is a manager of the waqf-property. His duty is to preserve the property like his own, but to manage and spend it like a servant of God. Although his functions are similar to that of a trustee under the Indian Trust Act, 1882 yet, he is not a trustee in its technical sense. Unlike a trustee, the property does not vest in mutawalli. The mutawalli simply holds the office as a manager of the property. But, he is not allowed to manage the property at his own choice. He has to administer the property strictly according to the objects and directions laid down by the founder.
Powers and Functions of Mutawalli
(i)Possessory Right
Powers and Functions of Mutawalli
Mutawalli’s right to possess the property is perfect and absolute against all other persons. The possession of a mutawalli can never be regarded as an adverse possession against the founder of the waqf. Therefore, if a mutawalli has been dispossessed by the founder or any other person, he is entitled to maintain an action in a court of law for getting back his possession.
Powers and Functions of Mutawalli
(ii) Power of Sale and Mortgage
Powers and Functions of Mutawalli
Generally, a mutawalli has no right to transfer the property by sale, exchange, gift or mortgage. However, a mutawalli can transfer the waqf-property in following circumstances-
(a) Where the founder has expressly authorised the mutawalli to sell, exchange etc., or mortgage the property, or
(b) Where, the mutawalli has taken a prior permission of a court of law for transferring the property.
Powers and Functions of Mutawalli
(iii) Power to Grant Lease
The mutawalli has power to grant lease of the waqf-property. But, his power is limited as regards the period of lease. In the case of a tenement i.e., residential place, he can grant leases only upto one year. In the case of agricultural lands, he can grant leases only upto three years. But, where the deed itself gives to a mutawalli the/power to grant lease for a period exceeding one year or three years, as the case may be, he can grant lease for longer durations. In the absence of any such authority from the waqf-deed, the mutawalli will have to take prior permission of the court.
Powers and Functions of Mutawalli
(iv) Power of Taking Loans
A mutawalli is not empowered to borrow money for the waqf, unless the dedication itself or the court authorises the takes some loan even for carrying out the purposes of the waqf he would be personally liable. The property of waqf would not be liable for such loans. A creditor who gives money to a mutawalli cannot claim the repayment from the waqf-property. As the loans taken by mutawalli without having any authority i.e., without authority from the deed or permission of the court, do not create any charge in the waqf-property, a money decree against mutawalli will not bind the waqf-property. However, where a waqf-deed authorises the mutawalli to take loans or where the court gives permission for taking loans, the mutawalli is not personally liable.
Powers and Functions of Mutawalli
(v) Right of Pre-emption
Powers and Functions of Mutawalli
A mutawalli cannot exercise the right of pre-emption for the waqf-property. Where a land which is adjacent to the waqf-property has been sold, the mutawalli cannot claim repurchase or substitution under the right of pre-emption. Girraj Kunwar v. Irfan Ali, AIR (1952) All, 686.
(B) Removal of Mutawalli
Once a mutawalli has duly been appointed, he cannot be removed by the founder for misconduct etc. except where the founder has expressly reserved such a right. But, the court has an absolute power to remove a mutawalli. Even though the waqf-deed specifically provides that mutawalli should not be removed in any circumstance. The court has unrestricted power to remove a mutawalli from his office in any of the following circumstances-
(i) where a mutawalli has become insolvent;
(ii) mismanagement of the waqf-property due to negligence.
(iii) failure of a ‘mutawalli to perform religious services where it is an essential part of his duties.
(iv) where the mutawalli utilises the waqf- property or its benefits for his private use;
(v) where a mutawalli applies the income of the waqf-property against the directions of the waqf-deed;
(vi) where a mutawalli otherwise exceeds his powers in dealing with the property, or
(vii) where the mutawalli suffers from any physical or mental incapacity.
It is to be noted that a mutawalli can be removed by the court (District Judge) only by maintaining a regular suit against him. He cannot be removed by the court merely on the basis of any application made before it. Moreover, a mutawalli cannot be removed by the court against the principles of natural justice. There should be a regular inquiry regarding the allegations made against him and he must be given reasonable opportunity to defend himself.
(C) Is the Office of Mutawalli Transferable
A Mutawalli has no power to transfer his office to any other person. His office is not transferable during his life. The office mutawalliship (Tawliyat) is created on the basis of certain personal qualifications, therefore, it would be against the nature of this office to allow a mutawalli to alienate his assignment to some other person. Mutawalliship cannot be regarded as a property. As this office is not any property, it cannot be the subject of any transfer. He is also not empowered to appoint any co-mutawalli to share his responsibilities. But, if the founder has given the power of transferring his office, he can lawfully transfer his assignment to another person. Similarly, with an authority from the founder a mutawalli can appoint co-mutawallis. However, in the absence of any express prohibition by the founder, the mutawalli has a right to appoint his deputy or assistants to help him in the management of the dedicated property.
(D) Can a person make a valid waqf in favour of his children and family i.e. waqf -alal-aulad ?
Family Waqf (Waqf-alal-Aulad)
It is to be noted that a waqf may either be public or private. A public waqf is that in which the beneficiaries are public generally. Where the beneficiaries are only the members of the founder’s family or his descendants, the waqf is private. A private-waqf is also called as a family-waqf or a waqf-alal-aulad. Through a family-waqf, the founder may make provisions for the maintenance of his children and descendants of coming generations. The origin of such waqf may be traced back to the traditions of the Prophet where he said, “a pious offering to one’s family is more pious than giving alms to beggars. The most excellent of Sadqah is that which a man bestows upon his family”, and “Giving alms to the poor has the reward of one alms, but that given to kindred has two rewards.”
Nature of Family Waqf
According to the Supreme Court, in a waqf-alal-aulad, the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the founder and his descendants. In case the family becomes extinct, the waqf becomes a public-waqf and property is vested in God. It is, therefore, clear that for the validity of a family waqf there must also be some charity for others. Benefit for settlor’s family, without any reference to charity for others, has always been invalid. However, the courts in India have recognised family waqfs subject to certain limitations. But, the judicial limitations regarding the nature and extent of the charity referred to in such waqfs, have created certain doubts as regards its applicability. Accordingly, the Mussalman Waqf Validating Act, 1913 was enacted to remove these doubts. The Act now clearly lays down the provisions of Muslim law at this point.
Here we will learn the topic Powers and Functions of Mutawalli in detail.
Law Prior to Waqf Validating Act, 1913
Before 1913, the Law relating to waqf-alal-aulad may be summarised as under
(i) A waqf exclusively for the benefit of the family was void. Some gifts to charity were essential.
(ii) The gift to charity must have been of a substantial portion of the income of waqf-property. If the gift to charity was nominal, the family-waqf was void.
(iii) It was also necessary that the gift to charity was concurrent. If it was too remote, the waqf was void.
The above conditions for the validity of family-waqfs were laid down by the Anglo-Indian courts. In Abdul Gafur v. Nizamuddin, 1892 a Muslim executed a waqf-deed in which he provided that the income of the property was to be utilised for the benefit of his wife, daughter and descendants of the daughter. There was no provision for any gift to charity at any state. Moreover, it was also not provided as to how the income would be applied in the event of total extinction of the founder’s family. The Privy Council held that the waqf was void because there was no gift to charity in it.
Here we will learn the topic Powers and Functions of Mutawalli in detail.
Law under the Waqf Validating Act, 1913
S. 3 of the Act provides that it shall be lawful for any person, professing Mussalman faith to create a waqf, which in all other respects is in accordance with the provisions of Muslim law, for the following, among other, purposes
(a) for the maintenance and support wholly or partially of his family, children or descendants, and
(b) where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other pupose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
Here we will learn the topic Powers and Functions of Mutawalli in detail.
