top of page

Mutawalli


Mutawalli
Mutawalli

Content:-



Manager of a Wakf: Mutawalli 


The Role and Appointment of Mutawalli under Muhammadan Law: Under Muhammadan law, the creation of a wakf immediately transfers all rights of the property from the wakif (the dedicator) to the Almighty. The individual responsible for managing the wakf is known as the Mutawalli. Here are the key aspects of the Mutawalli's role and appointment:



Creation and Transfer of Property

  • Immediate Vesting: Upon creating a wakf, all property rights of the wakif pass to the Almighty.


  • Managerial Role: The Mutawalli is appointed to manage the wakf property, ensuring it fulfills its intended charitable, religious, or pious purposes.



Appointment of the Mutawalli

  • Initial Appointment: Typically, the wakif appoints Mutawalli. If the wakif does not make this appointment, the power falls to the founder’s executor or a court-appointed individual.


  • Eligibility: Minors and individuals of unsound mind are ineligible for the role of Mutawalli. If the position is hereditary and the successor is a minor, the court may appoint a temporary Mutawalli until the minor comes of age.



Appointment by the Settlor

  • Female or Non-Muslim Mutawalli: The settlor can appoint a female or non-Muslim as Mutawalli, provided the wakf does not involve religious duties that such appointees cannot perform. For instance, women can be Mutawallis if the trust does not require duties they cannot personally or by proxy fulfill (Huwainti v. Khairuddin).


Succession and Vacancies

Line of Succession: The founder can:


  - Appoint the first Mutawalli.


  - Establish a succession plan for the office.


Vacancies: If the position of Mutawalli becomes vacant due to death, refusal to act, removal by the court, or any other reason, and no succession plan exists, the appointment power follows this order:


  1. The settlor.


  2. The settlor’s executor.


  3. Any surviving Mutawalli.


  4. The court.



Joint Mutawallis

  • Survivorship: When multiple Mutawallis are appointed jointly, the office passes to the survivor(s) upon the death of one, unless directed otherwise by the wakif. The dying Mutawalli cannot appoint a successor, as the office must transfer to the surviving Mutawallis.


These principles ensure that the management and administration of a wakf are handled efficiently and in accordance with the dedicator's intentions, maintaining the integrity and purpose of the wakf.

 
 

Hanafi and Shia Law Differences


  • Hanafi Law: A wakf inter vivos is completed through a mere declaration by the owner, without requiring the immediate appointment of a Mutawalli or transfer of possession to the Mutawalli (as per the cases of Mohammad Yasin v. Rubmat Illahi and Gharib Das v. Manshi A. Hamid).


  • Shia Law: For a wakf to be effective, possession must be transferred to the Mutawalli.



General Rules Regarding Appointment of Mutawalli by the District Court


The appointment of a Mutawalli (manager) by the District Court follows several general rules to ensure the proper administration and fulfillment of the wakf's objectives. Here are the four key rules:


  • Respect for Settlor's Directions: The Court should adhere to the directions provided by the settlor of the wakf regarding the appointment of a Mutawalli. However, it retains the discretion to disregard such directions if it deems it necessary for the clear benefit of the endowment.



  • Preference for Family Members: If a qualified family member of the settlor is available, they should be preferred over a stranger for the position of Mutawalli. This preference aims to maintain familial ties and ensure a deeper understanding of the settlor's intentions.



  • Discretion in Lineal Descendant Contest:  In a situation where there is a contest between a lineal descendant of the settlor and a non-lineal descendant, the Court is not obligated to appoint the lineal descendant. It has the discretion to appoint the most suitable candidate, regardless of lineage.



  • Succession in Joint Mutawalli: In the absence of specific directions from the wakif or evidence of custom, if the Mutawalli position is held jointly and one of the holders passes away, the office automatically passes to the surviving holder(s). Any attempt by the deceased Mutawalli to appoint a successor is invalid, and the position must pass to the surviving joint Mutawallis.

Illustration: In a hypothetical scenario where A, B, and C are appointed as joint Mutawallis of a wakf, and A passes away, leaving B and C as survivors, but before his death, A appoints X as his successor, the appointment of X is considered invalid.



According to the established rule, the position of Mutawalli must pass to the surviving joint Mutawallis, B and C, as per the absence of specific directions or evidence of custom dictating otherwise.



Powers and Duties of a Mutawalli


A Mutawalli (manager) of a wakf holds certain rights and obligations in managing the wakf property. Here are the key points regarding the rights and limitations of a Mutawalli:


  • Entitlement to Remuneration: A Mutawalli is entitled to receive remuneration as fixed by the terms of the wakf. This remuneration serves as compensation for their services in managing the wakf property.


  • Non-Transferability of Office: A Mutawalli cannot transfer their office, even on their death-bed. The position of Mutawalli is not hereditary and cannot be passed down to heirs.


  • Inalienability of Wakf Property:  Wakf property is generally inalienable, meaning it cannot be sold, mortgaged, or exchanged without specific authorization as per the terms of the wakf deed. Any attempt to alienate wakf property without court sanction is voidable.


  • Court Sanction for Property Transactions: Without the prior sanction of the court, a Mutawalli cannot execute certain property transactions such as selling, mortgaging, or leasing wakf property beyond specified durations.


  • Power of Court to Retroactively Sanction Leases: If a Mutawalli leases wakf property for a longer term without court permission, the court may retroactively sanction the lease if it deems the transaction to be in the best interest of the wakf.


  • Protection from Personal Decrees: Wakf property cannot be attached and sold in execution of a personal decree against a Mutawalli. The Mutawalli is considered a trustee, and their personal assets are protected from such decrees.


  • Limitation on Legal Actions: There is no statutory time limitation for filing suits against a Mutawalli or their legal representatives for the purpose of recovering wakf property or seeking an account of its proceeds.


  • Risk of Adverse Possession: Wakf property may be at risk of being lost through adverse possession if not properly managed and protected.



These rights and limitations ensure the proper management and preservation of wakf property for the fulfillment of its intended charitable or religious purposes.



Removal of a Mutawalli


Grounds for Removal of a Mutawalli: A Mutawalli (manager) of a wakf may be removed from their position by the court under certain circumstances. Here are the grounds upon which a Mutawalli can be removed:



  • Denial of Wakf Character:  If the Mutawalli denies the wakf character of the property and asserts an adverse title to it in their own name, they can be removed from office. This includes any attempt to claim ownership of wakf property for personal gain.



  • Neglect of Wakf Premises: If the Mutawalli neglects their duty to maintain and repair the wakf premises, allowing them to fall into disrepair despite having sufficient funds at their disposal, they can be subject to removal. Neglecting the upkeep of wakf property goes against their obligations as a manager.



  • Mismanagement or Misappropriation: If the Mutawalli knowingly and intentionally causes damage or loss to the wakf property or engages in misdeeds with the trust property, they can be removed from their position. This includes any acts of mismanagement or misappropriation of wakf assets.



  • Insolvency: If the Mutawalli is insolvent, rendering them unable to fulfill their duties effectively, they may be subject to removal. Insolvency can compromise the proper management and administration of wakf property, necessitating the appointment of a more capable individual.



In these cases, despite any provisions in the wakf deed expressly prohibiting the removal of the Mutawalli, the court has the authority to intervene and remove them from office to safeguard the interests of the wakf and ensure proper management and administration.

 
 


2 views0 comments

Recent Posts

See All

Kommentare


bottom of page