Mutawalli in Muslim Law

In Muslim law, a waqf is a charitable endowment in which a Muslim donates property or assets for religious or charitable purposes. This institution holds significant cultural and religious importance within Islamic tradition. When a waqf is created, all rights over the property are transferred to Allah, and the property can no longer be sold, inherited, or otherwise transferred. A waqf is established for the long-term benefit of the community or specific individuals, in accordance with the intentions of the waqif (the person who creates the waqf).

One of the key figures in the administration and management of waqf properties is the Mutawalli. The Mutawalli is the person appointed to oversee the waqf and ensure that the terms of the waqf deed are fulfilled. This article provides an in-depth look at the concept of Mutawalli under Muslim law, covering their appointment, powers, duties, and the circumstances under which they may be removed.

Concept of Mutawalli in Muslim Law

A Mutawalli is essentially the manager or caretaker of a waqf. Under Muslim law, once a waqf is created, the property is considered to be dedicated to God. Since God is not a tangible entity capable of managing property, the role of a Mutawalli becomes critical. The Mutawalli is entrusted with managing the property, maintaining it, and ensuring that the beneficiaries receive the intended benefits.

The status of the Mutawalli is distinct from that of a trustee in English law. While a trustee may hold legal title to the property, a Mutawalli does not. The waqf property is vested in God, and the Mutawalli merely manages it on behalf of the waqf. This distinction is important because it limits the Mutawalli’s power over the property, restricting them from alienating or mortgaging the property without permission.

Historical Background of Waqf and Mutawalli

The institution of waqf dates back to the early days of Islam and is rooted in the principle of perpetual charity. Waqfs were commonly used to support mosques, schools, hospitals, and other charitable endeavours. Over time, the system became an integral part of Islamic society, and with it, the role of the Mutawalli evolved.

Initially, the founder of a waqf, known as the waqif, would appoint a Mutawalli to manage the endowment. The waqif often retained some control over the property, but as Islamic law developed, the management of waqf properties became more formalised, with specific rules governing the appointment, duties, and removal of the Mutawalli.

Appointment of Mutawalli

The process of appointing a Mutawalli is generally outlined in the waqf deed or waqfnama. The waqif, as the creator of the waqf, typically has the power to appoint the first Mutawalli. The waqif may also establish a succession plan for future Mutawallis. In cases where the waqf deed does not provide specific instructions, or where the waqif dies without appointing a Mutawalli, several mechanisms exist for the appointment of a Mutawalli.

Who Can Be a Mutawalli?

According to Muslim law, any individual of sound mind and majority age can be appointed as a Mutawalli, provided they are capable of fulfilling the duties associated with the role. The key qualifications for appointment include:

• Sound Mind: A Mutawalli must be mentally fit to make sound decisions regarding the management of waqf property.
• Majority Age: The individual must have reached the age of majority, typically 18 years old, in order to take on the responsibilities of managing a waqf.
• Capability: The Mutawalli must be able to perform the specific functions required under the waqf deed.

Can Women Be Mutawallis?

Yes, women can serve as Mutawallis. There is no restriction in Muslim law preventing a woman from managing a waqf, except in cases where the Mutawalli is also required to perform religious duties, such as leading prayers or delivering sermons. In such instances, only men can be appointed.

Appointment by the Court

In cases where the waqif fails to appoint a Mutawalli, or where a vacancy arises and no successor has been named, the court has the power to appoint a new Mutawalli. The court follows certain principles when making this appointment, including:

• Preference for Family Members: The court generally prefers to appoint a family member of the waqif over an outsider, provided the family member is capable of fulfilling the role.
• Local Preference: In cases where the waqf serves a specific local community, the court may consider appointing a member of that community.

Appointment by the Current Mutawalli

In some cases, the current Mutawalli may have the power to appoint a successor, particularly if this right is granted in the waqf deed. However, the appointment of a new Mutawalli by an outgoing Mutawalli must still comply with the terms of the waqf deed and may be subject to court approval.

Powers and Duties of a Mutawalli

The primary role of a Mutawalli is to manage the waqf property in accordance with the terms of the waqf deed and Islamic law. Their powers and duties are extensive but are also limited by the fact that they do not have ownership rights over the property. The following sections outline the key powers and duties of a Mutawalli.

Management of Waqf Property

The Mutawalli is responsible for the overall management of the waqf property. This includes ensuring that the property is well-maintained, collecting any income generated by the property, and distributing the benefits to the intended beneficiaries.

The Mutawalli is also responsible for keeping accurate records of the waqf’s income and expenses, and they must provide regular reports to the relevant authorities, such as the Waqf Board or the court, depending on the jurisdiction.

Leasing of Waqf Property

One of the key powers of a Mutawalli is the ability to lease waqf property. However, this power is subject to strict limitations. Under Muslim law, a Mutawalli can lease:

• Agricultural land for up to three years without court approval.
• Non-agricultural land for up to one year without court approval.

Leases for longer periods require court approval, and failure to obtain such approval renders the lease voidable.

Alienation of Waqf Property

A Mutawalli cannot sell, mortgage, or exchange waqf property without obtaining prior approval from the court, unless the waqf deed specifically grants them the authority to do so. Any unauthorised alienation of waqf property is considered void and can be challenged in court.

Suing and Defending on Behalf of the Waqf

The Mutawalli has the power to initiate legal proceedings to protect the interests of the waqf. This includes filing lawsuits to recover possession of waqf property or defending the waqf against claims made by others.

However, with the enactment of the Waqf Act, 1995, many of these powers have been transferred to the Waqf Board, which oversees the management of waqf properties in many jurisdictions. As a result, the Mutawalli may need the approval of the Waqf Board to initiate or defend legal proceedings.

Financial Responsibilities

The Mutawalli is responsible for managing the finances of the waqf. This includes collecting rent, distributing income to beneficiaries, and ensuring that the waqf’s financial obligations are met. The Mutawalli must act with integrity and in the best interests of the waqf, ensuring that the property’s income is used for the purposes outlined in the waqf deed.

In some cases, the Mutawalli is entitled to remuneration for their services. The amount of remuneration is typically specified in the waqf deed. If the deed does not specify an amount, the court can determine an appropriate level of compensation. However, the remuneration cannot exceed 1/10th of the waqf’s income.

How to Remove Mutawalli

A Mutawalli can only be removed from their position under specific circumstances. The removal process is designed to ensure that the waqf is protected from mismanagement or abuse while also safeguarding the rights of the Mutawalli.

Grounds for Removal

The court or the Waqf Board may remove a Mutawalli for the following reasons:

• Mismanagement: If the Mutawalli fails to manage the waqf property effectively, resulting in financial losses or damage to the property, they may be removed.
• Misappropriation of Funds: If the Mutawalli uses the waqf’s funds for personal purposes or engages in other forms of financial misconduct, they can be removed.
• Insolvency: If the Mutawalli is declared insolvent, they are no longer eligible to manage the waqf.
• Neglect of Duties: If the Mutawalli neglects their duties, such as failing to maintain the waqf property or distribute income to beneficiaries, they may be removed.

Removal by the Court

The court has the authority to remove a Mutawalli if it is in the best interests of the waqf. This may occur in cases of misconduct, breach of trust, or incompetence. The process of removing a Mutawalli typically involves filing a lawsuit in the District Court, and the court will make its decision based on the evidence presented.

Removal by the Waqf Board

Under the Waqf Act, 1995, the Waqf Board has the power to remove a Mutawalli if certain conditions are met. These conditions include:

• Conviction for criminal breach of trust or other offences involving moral turpitude.
• Repeated failure to submit accounts or maintain proper records.
• Continuous neglect of duties or refusal to comply with lawful orders.

The Waqf Board must conduct an inquiry before removing a Mutawalli, and the Mutawalli has the right to appeal the decision to the Waqf Tribunal.

Appeal Process

If a Mutawalli is removed by the court or the Waqf Board, they have the right to appeal the decision to the Waqf Tribunal. The tribunal will review the case and issue a final decision. If the tribunal upholds the removal, the Mutawalli is barred from serving in that capacity for a period of five years.

Conclusion

The role of a Mutawalli in Muslim law is a critical one, as they are responsible for the management of waqf properties and ensuring that the intentions of the waqif are fulfilled. While the Mutawalli enjoys significant powers, these are balanced by strict legal limitations designed to protect the waqf and its beneficiaries.

The Mutawalli’s duties extend beyond mere management; they must act with integrity, diligence, and in accordance with Islamic principles. In cases where a Mutawalli fails to meet these standards, the courts and the Waqf Board are empowered to remove them to safeguard the waqf’s charitable purposes. In conclusion, the institution of the waqf, supported by the role of the Mutawalli, plays a vital part in the socio-economic and religious framework of Muslim communities, promoting perpetual charity and the betterment of society.