A Mutawalli cannot delegate his functions in his life-time while he is in good health. If a mutawalli takes some loan even for carrying out the purposes of the waqf he would be personally liable. The mutawalli is not the owner of the property, but merely the servant of god, managing the property for the good of his creatures. Who can appoint a mutawalli Generally, the wakif appoints a mutawalli. Ordinarily, the courts will not interfere with the intention of the founder as regards the subject of the wakf, but as regards management, it has complete discretion.
However, there is no compulsion in Sunni Law. Power to grant Lease: Lease is a transfer of the right of enjoyment of an immovable property on rent. If the essential elements as described above are fulfilled, a Wakf is created. Generally, the founder himself provides for the remuneration of mutawalli. The mutawalli simply holds the office as manager of the property. The reason is that according to Mohammedan law, no right of inheritance attaches to the office of mutawalli. Any mutawalli who is aggrieved by the assessment or revision made by the Chief Executive Officer, under sub-section 6 may prefer an appeal to the Board within thirty days from the date of the receipt of the assessment or revision of return and the Board may, after giving the appellant a reasonable opportunity of being heard, confirm, reverse or modify the assessment or revision or the return and the decision of the Board thereon shall be final.
He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if there is an urgent necessity. It was held that A was entitled to become the mutawalli only on the death of the wakif, and as there was nothing on the resignation of the first mutawalli, there was a vacancy, and the wakif was entitled to appoint B as mutawalli, but such appointment was valid only for the lifetime of the wakif. It should also be made clear that the removal of a mutawalli from his office should not affect his personal rights, if any. Contemporary Relevance of Family-Waqfs in the Muslim Society: Under the Waqf Validating Act, 1913 and Indian Muslim may create a family-waqf for the maintenance of his family and descendants and such waqf is not void even though the ultimate gift to charity is not substantial or is too remote. A mortgage without the previous leave of the Court is not void ab initio. According to the High Courts of Calcutta, Chief Court of Oudh and the Privy Council a waqf which is silent about any gift to charity cannot be validated by presuming an implied gift to charity.
In Ottoman Turkish law, and later under the , the waqf was defined as State land or property of which the State revenues are assured to pious foundations. By Usage - when a property has been in use for charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. A mortgage without the previous leave of the Court is not void ab initio. The documents submitted by the naib mutawalli state that Mukarram Jah had dedicated a portion of his immovable property to the Wakf Board. The Act now clearly lays down the provisions of Muslim law on this point. Encyclopaedia of Islam 2nd ed.
There is dispute over whether the founder himself can reserve exclusive rights to use waqf. He is entitled to remuneration as provided by the wakif. He has no right to spend the benefits of waqf for purposes which may be religious or charitable according to him but are not specified as objects of the waqf. If the remuneration is too small, he can apply to the court to get an increase. These provisions have accordingly been incorporated in this clause. If a wakf is created without appointing a mutawalli, in India, the wakf is considered valid and the wakif becomes the first mutawalli in Sunni law but according to Shia law, even though the wakf remains valid, it has to be administered by the beneficiaries.
Power to file a suit: Before the coming into force of the Wakf Act, 1945, the mutawalli could file a suit relating to a wakf, but after the coming into force of the Act, the power to file suit is vested in the Wakf Board under whose supervision mutawallis have to work. Keeping Tazias in the month of Moharram, and provisions for camels and Duldul for religious processions during Moharram. The court, however, can in a fit case remove a mutawalli and appoint another in his place. For purposes of section 3 a , a person may belong to the family of the founder either i because he is from a common progenitor having common line of descent or, ii because he is living with the founder and is being maintained by him. Like the public wakf, a wakf-alal-aulad can under no circumstances fail, and when the line of descendant becomes extinct, the entire corpus goes to charity. It is significant to note that under Shia law, the founder himself must appoint a mutawalli. The founder may provide a fixed amount to be paid periodically to the mutawalli.
Note: In Syed Mohamed Ghouse v. Remuneration of Mutawalli: A mutawalli is entitled to get some remuneration in return of the services discharged by him. Furthermore, some people who desire fame by making foundations and endowments obtain property by shady means, amounting even to extortion and exploita¬tion. Thirdly, a gift to charity may be express or implied. The court of law is competent to give the permission retrospectively.
Waqf by Non-Muslims: The dedicator must profess Islam i. Ahmed Nawaz Khan had accepted the responsibility of the construction of Alamgir Masjid and Eidgah Gutla Begumpet with an expenditure of Rs. A mutawalli executed a lease of property subject to a wakf for a period exceeding one year without the sanction of the Court. Thus, in a family- waqf the entire income of the waqf may be utilised for the benefit of the family. The following is the order in which the power to nominate the mutawalli transfers if the earlier one fails - 1.
Where any appeal is filed by the mutawalli to the Tribunal under sub-section 4 , the Board may make an application to the Tribunal for the appointment of a receiver to manage the wakf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 5 of 1908 , appoint a suitable person as receiver to manage the wakf and direct the receiver so appointed to ensure that the customary or religious rights of the mutawalli and of the wakf are safeguarded. A member of the public by completing the construction of the mosque and by making improvements in it, whether with his own funds or funds raised by public subscriptions, cannot disentitle the person who has the right to mutawalliship and himself become the mutawalli. An assembly of the persons of a particular locality, having beneficial interest in the waqf-property, is also authorised to appoint the mutawalli. The power of appointment is vested in the District Court. The founder of the wakf has the power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. Russomoy Dhur Choudhury: Facts: Two Muslim brothers executed a deed of family-waqf under which they dedicated their entire immovable property. Details are given in old texts about wakf made by prophet.
The courts of law are regarded as the protector of all the waqfs. The subject metter of wakf should be owned by wakif at the time when wakf is made. A de facto Mutawalli can sue for rents without establishing his de jure character. After dedication, ownership of the property is vested in God and becomes His property. This Act merely provides for the submission of audited accounts by the Mutawallis, to the District Judges. He gave it away for the poor, the relatives, the slaves, the , the travelers and the guests. An Act to provide for the better administration and supervision of wakfs.