Appointment of Mutawalli/ Management of Waqf

Appointment of Mutawalli: Qualifications of a Mutawalli: Powers and Functions of a Mutawalli: Removal of a Mutawalli

Introduction

Waqf is a permanent dedication of property by a person professing Islam for purposes recognized under Islamic law as pious, religious, or charitable. The management of Waqf property is a significant responsibility, and the individual appointed to carry out this task is known as a Mutawalli.

Who is a Mutawalli?

A Mutawalli is the manager or caretaker of the Waqf property. The Mutawalli is not the owner of the Waqf property — ownership lies with Allah — but he is entrusted with the administration and preservation of the Waqf in accordance with its purpose.

Appointment of Mutawalli (Tauliat)

The Wakif (founder of the Waqf) has full authority to appoint the first Mutawalli. He may even appoint himself as the first Mutawalli. If the Wakif does not appoint a Mutawalli at the time of dedication, the appointment can be made in the following ways:

1. Appointment by the Wakif

There is a divergence of views in Islamic jurisprudence regarding this:

Hanafi Law:
- Abu Yusuf: The Waqf would be valid and the Wakif becomes the Mutawalli by default.
- Abu Hanifa & Imam Muhammad: The Waqf would be void if no Mutawalli is appointed.
Shia Law:
- Possession must be transferred for the Waqf to be valid. Hence, the Wakif must appoint a Mutawalli before transferring possession. After possession is transferred, the Wakif cannot appoint a Mutawalli; in such a case, beneficiaries may manage the Waqf.

2. Appointment by Executor of the Founder

If the Wakif dies without appointing a Mutawalli and the Waqf deed is silent, the executor of the Wakif has the authority to appoint a Mutawalli.

3. Appointment by the Outgoing Mutawalli on Death-bed

Generally, a serving Mutawalli has no authority to appoint a successor. However, an exception exists if:

The Wakif and his executor have both died.
The Waqf deed has no scheme of succession.
In such a case, a Mutawalli may appoint his successor on his death-bed, provided:
- He is terminally ill with no hope of recovery.
- The office would otherwise remain vacant.

4. Appointment by Court

If none of the above methods are possible, the court has the authority to appoint a Mutawalli to ensure the proper administration of the Waqf.

5. Appointment According to Custom or Usage

If there is no direction in the Waqf deed, a hereditary appointment through custom or usage may be accepted.

6. Appointment by the Waqf Board

Under Section 63 of the Waqf Act, the Waqf Board can appoint a Mutawalli in case of vacancy. The Board must follow the terms of the Waqf deed in such appointments and may impose conditions or limit the tenure when there is a dispute between potential appointees.

Qualifications of a Mutawalli

A Mutawalli must possess the following qualifications:

Muslim or Non-Muslim: Since the office is administrative, even non-Muslims can serve.
Male or Female: Women are not barred from being Mutawalli.
Any Sect: A person from any Islamic sect may be appointed, e.g., a Shia managing a Sunni Waqf.
Sound Mind: Must be mentally sound; a blind person may serve.
Age of Majority: Generally must be an adult, but a minor may inherit the position if it is hereditary or specified in the Waqf deed.

Remuneration of a Mutawalli

1. No Automatic Right to Remuneration

A Mutawalli cannot demand remuneration as a matter of right. However, the Wakif may allow for compensation, either as a fixed amount or from the remaining income of the Waqf property after expenses.

2. Remuneration Fixed by Court

In the absence of a provision in the Waqf deed, the court may grant remuneration. However:

It cannot exceed one-tenth of the Waqf income.
If the Wakif-set salary is too low, the court may increase it — again, not exceeding one-tenth of the income.

Under Shia law, the Wakif can appoint himself as the first Mutawalli and receive reasonable remuneration.

Powers and Functions of a Mutawalli

A Mutawalli acts as a manager, not as an owner. His powers are limited to the administration and management of Waqf property:

Power of Management and Administration
Power to Incur Debt (for the benefit of the Waqf)
Power of Alienation of Property (requires court approval in many cases)
Power to Grant Lease

Duties of a Mutawalli

As per Section 50 of the Waqf Act, 1995, the duties include:

Complying with the directions of the Waqf Board.
Submitting reports, returns, and other information.
Allowing inspection of Waqf properties and records.
Payment of taxes and public dues.
Performing any other act as per the provisions of the Act.

Removal of a Mutawalli

1. Removal by Wakif

The Wakif may only remove a Mutawalli if he has expressly reserved that right in the Waqf deed.

2. Removal by the Court

The court has broad powers to remove a Mutawalli for the following reasons:

Non-payment of taxes, or failure to maintain accounts.
Insolvency.
Unauthorized sale or transfer of Waqf property.
Fraud or embezzlement (malversation).
Misfeasance or breach of trust.
Neglect of duties or incapacity.

Even if the Wakf deed states that a Mutawalli cannot be removed, the court still retains the authority to do so for just cause.

Conclusion

The management of Waqf is a sacred and serious responsibility. While the Mutawalli is not the owner of the property, he is entrusted with its upkeep, administration, and utilization in line with the purpose defined by the Wakif. Proper procedures are in place for appointment and removal to ensure that the sanctity and objectives of Waqf are preserved. The Waqf Board and courts play a supervisory role to prevent mismanagement, fraud, or neglect and to uphold the intent of the Wakif