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JAMIA MILLIA ISLAMIA

AN ASSIGNMENT

ON

ADMINISTRATION OF WAQF IN INDIA,


CRITICAL ANALYSIS OF OFFICE OF MUTAWALLI

SUBMITTED TO: SUBMITTED BY:


Dr. KAHKASHAN.Y.DANYAL SYED SUBOOR HUSSAIN
FACULTY OF LAW LLM (II SEM)
JAMIA MILLIA ISLAMIA FACULTY OF LAW
ACKNOWLEDGEMENT
I express deep sense of gratitude and indebtness to my teacher, Dr
KAHKASHAN .Y.DANYAL under whose guidance, valuable suggestions, constant
encouragement and kind supervision, the present project was carried out. I am also
grateful to college faculty of Law for feedback and keeping us on schedule.
I also wish to express my sincere thanks to my family and friends who always
tried to help me by giving their valuable suggestions.
INTRODUCTION

The literal meaning of waqf is to stop, contain, or to preserve. In legal terms it means
‘to protect a thing, to prevent it from becoming the property of a third person.’
A waqf is an unconditional and permanent dedication of property with implied
detention in the ownership of God in such a manner, that the property of the owner
may be extinguished and its profits may revert to or be applied for the benefit of
mankind except for purposes prohibited by Islam.
In shariah a waqf is a voluntary, permanent, irrevocable dedication of a portion of
one’s wealth in cash or kind to Allah. Once a property is transferred through waqf,
it never gets gifted, inherited, or sold. It belongs to Allah and the corpus of the waqf
always remains intact.
For the purpose of the Musalman waqf validating act of 1913, a waqf means:
"a permanent dedication by a person professing the Musalman faith of any property
for any purpose recognized by the Muslim Law as religious, pious or Charitable."
Imam Abu Hanifa defined it as:

‘Waqf is the detention of a specific thing in the ownership of the waqf or


appropriator, and the devoting or appropriator’s of its profits or usufruct in charity
on the poor or other good objects.’
ORIGINS OF WAQF
“Ibn ‘Umar reported: “Umar acquired land in Khaibar. He came to Allah’s Apostle
(saw) and sought his advice in regard to it. He said: “Allah’s Messenger, I have
acquired land in Khaibar. I have never acquired more valuable for me than this, so
what do you command I do with it? Thereupon the Prophet (saw) said: If you like,
you may keep the corpus intact and give its produce as Sadaqah. So Umar gave it as
Sadaqah declaring that the property must not be sold or inherited or given away as
gift. And ‘Umar devoted it to the poor, to the nearest of kin, to the emancipation of
slaves, to wayfarers/guests, and in the way of ALLAH.1

The essential conditions for a valid waqf are given below:

 There must be a permanent dedication.


 The founder of the waqf must be a competent person.
 The subject-matter must be a transferable property.
 The object of the waqf must be religious, pious or charitable, under Muslim
law.
 The formalities required to constitute the waqf must be duly completed.

1
Sahih Muslim.
Administration Of Wakf In India

Administration In General: -
Usually a wakf has a range of beneficiaries. Thus, the founder makes arrangements
beforehand by appointing an administrator (called nāẓir or mutawallī or ḳayyim)
and lays down the rules for appointing successive administrators. The founder may
himself choose to administer the wakf during his lifetime. In some cases, however,
the numbers of beneficiaries are quite limited. Thus, there is no need for an
administrator, and the beneficiaries themselves can take care of the wakf (since
they are regarded the virtual owners).

The administrator, like other persons of responsibility under Islamic law, must
have capacity to act and contract. In addition, trustworthiness and administration
skills are required. Some scholars require that the administrator of this Islamic
religious institution be a Muslim, though the Hanafis drop this requirement.

As per Wakf Act 1954 (later Wakf Act 1993) enacted by Government of India,
Wakfs are categorized as

· Wakf by user such as Graveyards, Musafir Khanas (Sarai) and Chowltries etc.,

· Wakf under Mashrutul-khidmat (ServiceInam)such as Khazi service,


Nirkhiservice, Pesh Imam service and Khateeb service etc.,

· Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith
and kin and for any purpose recognised by Muslim law as pious, religious or
charitable.

After the enactment Wakf Act 1954, the Union government directed to all the
states governments to implement the Act for administering the wakf institutions
like Mosques,Dargah, Ashurkhanas, Graveyards, Takhiyas, Iddgahs, Imambara,
Anjumans and various religious and charitable institutions.

In India, the management of Wakf is undertaken by the Central Wakf Council,


India, a statutory body under Government of India, which also oversees State Wakf
Boards. In turn the State Wakf Boards work towards management, regulation and
protect the Wakf properties by constituting District Wakf Committees, Mandal
Wakf Committees and Committees for the individual Wakf Institutions. As per the
report of Sachar Committee (2006) there are about 5 lakh registered Wakfs with
600,000 acres (2,400 km2) land in India, and Rs. 6,000 crore book value.

Central Wakf Council: -


Central Wakf Council, India is an Indian statutory body established in 1964 by the
Government of India under Wakf Act, 1954 (now a sub section the Wakf Act,
1995) for the purpose of advising it on matters pertaining to working of the State
Wakf Boards and proper administration of the Wakfs in the country.

The Council is headed by a Chairperson, who is the Union Minister Incharge of


Wakfs, while Secretary is the Chief Executive of the Council, there are maximum
20 other members, appointed by Government of India as stipulated in the Wakf
Act. Presently the chairperson is Salman Khursheed, the Minister of State for
Ministry of Minority Affairs, which overlooks its functioning.

Functioning Of The Council: -


Central Wakf Council normally meets twice in a year. However, the Committees
of Central Wakf Council, which consists of its members meet as often as possible
to transact business regarding the monitoring of the programmes of the Council,
administrative and financial matters, implementation of the scheme for the
Development of Urban Wakf Properties and Educational schemes of the Council.
the Committees also discharge the functions entrusted to it by the Council from
time to time.

The main function of the Central Wakf Council is to advise the Government of
India on matters concerning the working of Wakf Boards and the due
administration of Wakfs in the country. Beside that the important issues affecting
the community espacially those pertaining to religious matters/Islamic affairs like
administration of Mosques, Dargahs and proper management of properties are also
considered by the Council/its Committees. Whenever matters of general interest
regarding management of Wakfsin States are to be taken up at the level of the
Central Government, the same are generally referred to the Central Wakf Council.
Administration Of Wakf: -

The Central Government is responsible for the implementation of the Wakf Act. It
has been taking up issues of common concern to promote the interests of Wakfs in
the country. The Wakf Act, 1954 had provisions for survey of Wakfs, constitution
of Central Wakf Council and State Wakf Boards etc. For better interpretation of
the provision of the Act keeping in view the objective of the legislation, the Wakf
Act, 1954 was amended many times. Finally a comprehensive and land mark
legislation i.e. Wakf Act, 1995 was enacted by the Government of India in
November, 1995, which became effective from 01.01.1996. In contrast to the
previous Act, this Act is applicable throughout the country except for Jammu &
Kashmir and Dargah Khwahja Saheb, Ajmir.

Sec 32 (2)(c) reads that:


“Without prejudice to the generality of the foregoing power, the functions of the
Board shall be to give directions for the administration of wakfs”

The provision is of general nature but the directions of the board must be lawful
and fall within the competence of the board as the superintending authority of the
wakfs.

The board has to maintain a record containing the details regarding the origin,
income, object and beneficiaries of every wakf [sec 32 (2) (a)]. It is one of the
basic functions of the board to see to the proper application of the income of the
wakf properties, in accordance with the objects and purpose of the wakf.
Misapplication and misappropriation of the income from the wakf properties have
become a common feature and the board has to make a lynx eyed scrutiny of the
income and the expenses of every wakf [Sec 32(2)(b)]. The inspectors and
superintendents of wakfs should make periodical and surprise scrutiny of the
accounts of the wakfs and must be held responsible for any lapse on their part. The
power to frame schemes for management of wakfs is conferred on the board and
this power has to be excercised after due notice to the Mutawalli and to all parties
affected and after giving them sufficient opportunities of being heard [Sec 32
(2)(d)]. This is done by the Board on its own motion or on the application of not
less than 5 persons interested in any wakf to frame a scheme for the administration
of that wakf in consultation with the mutawalli and the applicants, if it is satisfied
that the framing of a scheme is necessary or desirable [Sec 69]. The Board has
power to issue directions: -

i. For the utilisation of the surplus income consistent with the objects of the wakfs

ii. For the manner of utilising the income where the object of the wakf is not
disclosed in any written instrument

iii. Where any object of a wakf has ceased to exist or has become incapable of
achievement [Sec32(2)(e)].

The board is empowered to scrutinise and approve the budget submitted by the
mutawallis and to arrange for the auditing of the accounts of the Wakfs. This
power must be exercised by the board not in a casual or cavalier manner, but with a
deep sense of duty. In case of public trusts and endowments which are
administered under schemes framed by the courts, the annual accounts and budget
estimates submitted to the courts were never seriously scrutinised but were merely
recorded [Sec 32 (2)(f)]. The Board has power to remove Mutawallis in accordance
of the Provision of Wakf Act, 1995(Sec 63 & 64) [Sec 32 (2)(g)]. The board is
empowered to take measures to recover lost properties of any wakf [Sec 32 (2)(h)].
The board has the power to institute and defend suits and proceedings relating to
wakfs. The board is a body corporate and shall by the said name sue and be sued.
This power is inherent in the every constitution of the board in which is vested and
general superintendence of all wakfs in the state [Sec 32 (2)(i)]. One of the most
important function of the board is to sanction any transfer of immovable property
of a wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the
provisions of this Act: Provided that no such sanction shall be given unless at least
two- thirds of the members of the Board vote in favour of such transaction [Sec 32
(2)(j)]. The Board is entrusted with the administration of wakf fund in accordance
with the sec 76 of this act [Sec 32 (2)(k)]. The Board is entitled to call for such
returns, statistics, accounts and other information from the mutawallis with respect
to the wakf property as the Board may, from time to time, require under their
management. [Sec 32 (2)(l)]. The Board has the power to inspect, or cause
inspection of, wakf properties, accounts, records or deeds and documents [Sec 32
(2)(m)]. The Board is empowered to investigate and determine the nature and
extent of wakf and wakf property, and to cause, whenever necessary, a survey of
such wakf properties [Sec 32 (2)(n)]. And finally it gives residuary power to the
Board to do generally all such acts as may be necessary for the control,
maintenance and administration of the wakfs in the state [Sec 32 (2)(o)].
MUTAWALLI
A mutawalli is the superintendent or manager of the waqf property. As per the case
of Kanib Begum v. Akbar Jan the waqf is not completed unless besides a
declaration of waqf, a mutawalli is appointed by the owner and possession of
endowed property is delivered to him.

Competency of Mutawalli
He should have the following attributes:
 Should be Muslim. He may belong to any sect. i.e. a Sunni can be a
mutawalli of Shia waqif and vice versa.
 Of sound mind
 Major

Who can appoint Mutawalli?


A mutawalli can be appointed by the following in the given order:
 The waqif himself: It is lawful for the waqif to reserve the mutuwalliship for
him. And where a waqf has been created, but the waqif has not appointed on
mutawalli for the administration of the waqf, nor has reserve the
mutuwalliship for him, the office would nevertheless appertain to him qua
waqif. In Ali Azghar v. Farid Uddin, the waqif appointed himself as the first
mutawalli and after his death Ali Azghar.
 His executor: Should the waqif die without making any express appointment,
the power of appoint a mutawalli devolves upon lies executor
 The mutawalli: A mutawalli can appoint his successor under very restricted
conditions, which are as follows-
1. Waqif and his executor both dead
2. Waqif deed is silent on the point of succession of mutuwalliship
3. There is no positive custom regarding such devolution.
4. The waqf deed authorizes him to this effect.
 The Court: It no such appointment is made the court may appoint a
mutawalli. But court should select by preference a member of the founder
family. It there by any fit persons possessing that qualification. If the
members of the founders family is not a person possessing that qualification,
the court may appoint a stranger, as happened in the case of Shabar Banoo
v. Aga Mohamed.

Powers and functions of Mutawalli


The mutawalli is manager of the waqf property. His primary duty is to preserve the
property like this own, but to manage and spend it like a servant of God. As
discussed earlier a mutawalli is not owner of the waqf property, the property vest
in God, not in him. Although his functions are similar to that of a trustee under the
Indian trust Act, 1882 yet, the not a trustee is its technical senses unlike a trustee,
the property close not vest in mutawalli. The mutawalli simply holds the office as
manager of the property. But, he is not allowed to manage the property at his own
choice. He has to administer the property strictly according to the object and
direction laid down by the founder. He has no right to spend the benefit of waqf for
purposes which may be religious or charitable according to him but are not
specified as objects or the waqf.

Power of mutawalli to sell or mortgage


A mutawalli has no power, without the permission of the court, to mortgage, sell or
exchange waqf property or any part thereof unless he is expressly empowered by the
deed of waqf to do so. He cannot transfer his duties further to anybody. He cannot
make anybody a trustee. He cannot spend on mere improvements. He cannot grant
waqf property on lease for: More than 1 year, and case of nonagricultural land or
more than 3 years in case of agricultural land.
Removal and new appointment of Mutawalli
If a mutawalli is incapable of carrying on the duties of a mutawalli the court shall
have the power of removing him on reasonable grounds. At the time of appointing a
mutawalli, however, the court as far as possible shall have to the wishes of the creator
of waqf and shall appoint as for as possible, a suitable person as mutawalli from the
family of the waqif.
Male or female
The Mutawalli may be either a male or a female; a woman is not debarred from acting
as Mutawalli because the office does not involve any religious or spiritual obligation.
It means a female and the non-Muslim are legally qualified to be appointed as a
Mutawalli.
It is because a Mutawalli is primarily concerned with the superintendence or
management of the Waqfproperty.Supervision and management is a non-religious activity. But,
where the Mutawalli is required to discharge also some religious function, a female or a non-
Muslim cannot act as Mutawalli. Accordingly, in the following cases, a female and a
non- Muslim cannot be appointed as Mutawalli:
 Where the Mutawalli is to act as Sajjadnashin or a spiritual head.
 Where the Mutawalli is to act as imam, i.e., where he is required to lead the
assembly of people for religious prayers.
 Where the Mutawalli is to act as a Mulla. A land assigned to a Mulla as
remuneration of his office, cannot be succeeded by any female successor.
 Where the Mutawalli is required to give religious preaching i.e., where he has to act
as khatib.
 Where the mutawalli is required to act as mujavar of dargah.

Remuneration of mutawalli
Remuneration may be fixed by the mutawalli or by the court at the time of
appointment or it can be stated that instead of monthly salary, mutawalli can be made
entitled to a specified amount of profit arising out of the property as a part of his
salary.
BIBLIOGRAPHY
Books:

1. MANZAR SAEED, Commentary on Muslim Law in India, (Orient Publishing


Company. 2011, New Delhi)
2. I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law
Agency, 2009, Allahabad)
3. Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010
Allahabad)
4. Prof. G.C.V. SUBBA RAO, Family Lawin India, (10th Ed, S. Gogia &
Company, 2012 Hyderabad)

Websites:

1. www.westlawindia.com
2. www.indiakanoon.com
3. www.manupatra.com