Under the Muhammadan law, the moment a wakf is created; all rights of property pass out of the wakif and vest in the Almighty. The manager of a wakf is called its Mutawalli. Usually, he is appointed by the settlor. If not, the founder, his executor, and lastly, a person appointed by the Court, are the Mutawallis.
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But, neither a minor nor a person of unsound mind can be appointed a Mutavalli. When the office of the Mutawalli is hereditary, and the person entitled to succession is a minor, the Court may appoint another person to discharge the duties of the Mutawalli during the minority of such person.
ADVERTISEMENTS:
When the settlor makes the appointment, he may appoint a female, or even a non-Muslim, as the Mutawalli, provided the wakf does not involve the performance of any religious duty.
Who can be Appointed Mutawalli:
The founder of a wakf has the power (i) to appoint the first Mutawalli (i.e., manager of the wakf) and (ii) to lay down the line of succession to the office of Mutawalli. Any person, male or female, may be appointed as Mutawalli, provided that he or she is capable of performing the functions to be discharged under a particular wakf.
Thus, where the Mutawalli is to perform religious or spiritual duties, neither a female nor a non-Muslim can be appointed as a Mutawalli, as they are not competent to discharge these duties. There is no legal prohibition against a woman holding a Mutawalliship, when a {rust by its nature involves no spiritual duties such as a woman could not properly discharge in person or by deputy. (Hussainbi v. Khairuddin, A.I.R. (1939) Bom. 487)
If the founder does not appoint a Mutawalli during his life-time, his executor may make the appointment. If the executor also fails to appoint a Mutawalli, the Court will appoint one.
ADVERTISEMENTS:
If a duly appointed Mutawalli (i) dies, or (ii) refuses to act, or (iii) is removed by the Court, or (iv) the office of a Mutawalli otherwise becomes vacant, and there is no provision in the wakf deed regarding the succession to the office of Mutawalli, the power of appointing another Mutawalli belongs to the following persons, in the following order : (i) the settlor, (ii) the executor of the settlor, (iii) the surviving Mutawalli, if any, and failing all these, (iv) the Court.
Succession in Case of Joint Mutawallis:
When two or more Mutawallis are jointly appointed, and there is no direction by the wakif to the contrary, the office of Mutawalliship will pass, on the death of one of the Mutawallis, to the survivor or survivours. In such a case, the dying Mutawalli cannot validly appoint a successor to him, as the office must pass to the survivors.
Moazzam v. Raza, (1924) I.L.R. 49 All. 856:
A files a suit against B, and claims that certain property is wakf property and that he is the Mutawalli thereof. В denies that the property is wakf property. In the alternative, В contends that if the said property is held to be wakf, B, and not A, is the sole Mutawalli thereof. A and В refer the matter to arbitration, The arbitrator holds that the property is wakf, and that each is entitled to an equal share in the management and profits of the said property. A wants to enforce the award.
On these facts, it was held, enforcing the award, that though the office of a Mutawalli is a public office, and therefore, a Mutawalli cannot be appointed by arbitration, and that the right to succeed as a Mutawalli cannot lawfully be the subject of arbitration, still independently of the question of appointment of a Mutawalli, the parties referred certain differences to an arbitrator who, by his award, determined their rights.
ADVERTISEMENTS:
The status of the parties is determined by the award, and each is entitled to an equal share in the management and profits of the wakf property. Moreover, there is nothing in law to prevent such a question as the right of one of the two claimants, or of both jointly, to occupy the position of a Mutawalli of a wakf being made the subject of a reference to arbitration.