A mutawalli is the superintendent or manager of a waqf. The word is not equivalent to "trustee" in the English sense, because the mutawalli has no estate in the property: ownership having vested in God, the mutawalli holds no title but only a right of administration. His position is closer to that of a manager than a proprietor. He administers, preserves and applies the income to the objects of the waqf, and that exhausts his function.
Who May Be Appointed Mutawalli
| Condition | Explanation |
|---|---|
| Any person, male or female | Under Hanafi law a woman may be mutawalli. Shia law follows the same position |
| Non-Muslim may be appointed | Where the waqf deed so provides, or where the objects are secular; but the Waqf Act 1995 S.51 permits the Board to appoint only a Muslim on removal of an existing mutawalli |
| Minor may not act | Cannot discharge the duties, though the office may be held in expectancy |
| Person of unsound mind disqualified | By general law |
Modes of Appointment
| Mode | Explanation |
|---|---|
| By the waqif in the deed | The primary and commonest mode. The waqif may appoint himself |
| By the waqif inter vivos | By a separate instrument or oral declaration at any time |
| By succession | Where the waqf deed provides for succession from one holder to the next |
| By the court | Where the office is vacant and there is no provision in the deed |
| By the Waqf Board | Under S.51 on removal, or under S.64 to fill a vacancy |
Nature of the Office
Why the mutawalli is not a trustee: In an English trust, legal title vests in the trustee and he manages the trust property as owner. In a waqf, ownership vests in God, and the mutawalli's right is one of management only. He cannot convey the property because he has no title to convey. He draws no beneficial interest unless the deed reserves one. The analogy, if one is needed, is closer to a statutory manager or a church warden than to a trustee.
The Supreme Court in Bihar State Board of Religious Trusts v Mahant Sri Biseshwar Das (1971) described the position of a manager of a religious endowment as combining the duties of a trustee (loyalty, accounts, preservation) with powers more limited than those of a trustee, since the manager cannot deal with the corpus as if it were his own.
Powers of the Mutawalli
The mutawalli's powers are administrative only, limited to what is necessary to carry out the objects of the dedication.
| Power | Scope |
|---|---|
| Collection of income | Rents, profits, subscriptions |
| Letting of waqf property | On leases of ordinary duration consistent with prudent management |
| Expenditure on the objects | Salaries, repairs, religious or charitable payments as the deed directs |
| Maintenance of the property | Necessary repairs and improvements |
| Litigation | Sue and be sued on behalf of the waqf |
| Appointment of servants | Engage subordinate employees for administration |
Power to Alienate: The Strict Rule and Its Exceptions
The general rule is that waqf property is inalienable. The mutawalli cannot sell, mortgage or exchange it. This follows from the nature of the dedication: the property is God's, not the mutawalli's, and the mutawalli has no estate in it.
The narrow exceptions are these:
| Exception | Condition |
|---|---|
| Legal necessity | To preserve the property or pay a debt necessary for its preservation; not for the mutawalli's personal benefit |
| Benefit of the waqf | Where the alienation produces a clear benefit to the institution, for example exchanging a property yielding nothing for one yielding revenue |
| Custom or usage | Where an established practice particular to the waqf permits it |
| Sanction of the court or the Board | Under the 1995 Act, S.51 read with S.36 and S.52 |
S.51(1)(b) and (c) of the Waqf Act 1995 allow the Board to sanction transactions not within the mutawalli's ordinary powers, including a sale, gift, mortgage or exchange, and the Waqf Tribunal has jurisdiction over such applications.
Why the test is legal necessity rather than prudent management: The distinction matters because prudent management would permit a mutawalli to rationalise a waqf portfolio by selling underperforming assets, which would effectively give him the freedom of a commercial owner. Legal necessity confines him to situations of compulsion, and it is up to him to prove it. This is the same test that limits the karta's power of alienation under Mitakshara joint family law, and for the same reason: protecting a corpus from the discretion of its manager.
Leasing Power
The mutawalli may lease waqf property for the ordinary term consistent with prudent management. Unreasonably long leases or leases at undervalue may be set aside by the Tribunal.
Under the Waqf Act 1995, S.36 and the rules made under it, a mutawalli proposing to let property for more than three years (in certain States, one year) must obtain the Board's sanction.
Duties of the Mutawalli
| Duty | Content |
|---|---|
| Faithful administration | Manage the waqf honestly, diligently and in the interest of the beneficiaries and the objects |
| Maintenance and preservation | Keep the property in good repair, protect it from encroachment |
| Application of income | Apply the income strictly to the objects specified in the deed, in the priority the deed prescribes |
| Accounts | Maintain proper accounts and render them to the Board under S.37 |
| Filing returns | Annual return of income, expenditure and property to the Board under S.36 |
| No personal benefit | Take no personal benefit from the waqf property beyond what the deed allows as remuneration, if anything |
| No mixing of personal funds | Keep the waqf income separate from his personal money |
| Obedience to the Board | Carry out the directions of the State Waqf Board lawfully given under the Act |
Why the fiduciary standard is absolute: The mutawalli holds no beneficial interest, so any personal benefit is a gain at the expense of the dedication. Unlike an English trustee, he cannot set off a gain to himself against a corresponding gain to the trust estate. There is nothing to balance, because the entire income belongs to the objects. Self-dealing is not regulated by fairness; it is simply prohibited.
Removal of the Mutawalli
Under the Waqf Act 1995 (S.64)
The State Waqf Board may remove a mutawalli on the following grounds:
| Ground | Explanation |
|---|---|
| Misapplication or waste of waqf property | Diversion of income, damage by neglect |
| Breach of trust | Any conduct amounting to a breach of the fiduciary duty |
| Failure to maintain accounts | Or failure to submit the annual return |
| Wilful disobedience of lawful directions of the Board | Refusal to comply with orders |
| Conviction of a criminal offence involving moral turpitude | Sentence of imprisonment |
| Becoming of unsound mind | Certified incapacity |
| Appointment obtained by fraud or misrepresentation | Ground relates to the validity of the initial appointment |
Procedure
- The Board issues a notice to the mutawalli specifying the ground and calling for a reply within a stated time.
- The mutawalli is given a reasonable opportunity of being heard.
- The Board passes a speaking order.
- The order is subject to appeal before the Waqf Tribunal under S.83.
Why the Board and not the court: Under the 1995 Act the Board has supervisory jurisdiction over waqfs in the State, and removal is an administrative rather than a judicial function. The Waqf Tribunal provides the judicial check by way of appeal. The earlier position, before 1995, was that removal required a suit before the civil court, which was slow and costly. The Act centralised the function to give Boards effective control over absentee and negligent mutawallis.
By the Court
The court retains inherent jurisdiction to remove a mutawalli in a suit by a person interested, for instance a beneficiary. This jurisdiction is concurrent with the Board's statutory power.
Recall Check
- Why is the mutawalli described as a superintendent rather than a trustee?
- Under what conditions may a mutawalli alienate waqf property?
- What is the procedure for removal, and who has jurisdiction?
Key Cases
Syed Md Salie Labbai v Mohd Hanifa (1976) Syed Md Salie Labbai v Mohd Hanifa 1976
Issue: Whether a mutawalli may deal with waqf property as if he were its beneficial owner.
Rule: The mutawalli is only a manager and has no right to deal with the property for his own benefit or to alienate it except in cases of necessity or for the benefit of the waqf.
Held: The alienation was set aside. The mutawalli's powers are limited to administration, and the beneficiaries and the dedication are the only interests the law protects.
Bihar State Board of Religious Trusts v Mahant Sri Biseshwar Das (1971) Bihar State Board of Religious Trusts v Mahant Sri Biseshwar Das 1971
Issue: Whether the State Legislature may impose statutory duties and supervision on the manager of a religious endowment.
Rule: A religious endowment is not the manager's property. The manager holds a position of trust, and the State may regulate its administration in the interest of the institution and the public.
Held: The legislation was valid. The manager's rights are confined to the office, not to the corpus.
In Re: The Waqf (Amendment) Act, 2025 (2025) In Re Waqf Amendment Act 2025
Citation: 2025 INSC 1116; 2025 LiveLaw (Supreme Court) 909; interim order of 15 September 2025
Rule: Interim order only. The Court refused to stay the Waqf (Amendment) Act 2025 as a whole, holding that striking down a statute is reserved for the rarest of cases and that the presumption is always in favour of constitutionality, and finding no prima facie case against the 2025 amendment as a whole. It stayed the operation of S.3(r) insofar as it requires the waqif to prove five years of practising Islam, until the States frame guidelines for such determination, and stayed the proviso to S.3C(2), S.3C(3) and S.3C(4) on separation of powers grounds. It capped non Muslim members at four on the Central Waqf Council and three on State Waqf Boards, directed that titles will not be affected and waqfs not dispossessed until final adjudication, directed that a waqf cannot create third party rights pending adjudication, and extended the time to register waqfs.
Sardar Syedna Taher Saifuddin Saheb v State of Bombay (1962) Sardar Syedna Taher Saifuddin v State of Bombay 1962
Citation: All India Reporter 1962 Supreme Court 853; (1962) Supplementary (2) Supreme Court Reports 496; judgment of 9 January 1962
Rule: On the faith and tenets of the Dawoodi Bohras, the exercise of the power of excommunication by the religious head on religious grounds forms part of the management of the community's affairs in matters of religion, so a statute invalidating even such excommunication infringes Art.26(b). Arts.25 and 26 protect not merely doctrines and beliefs but acts done in pursuance of religion, and what is an essential part of a religion is judged in the light of its doctrine and of what the community itself regards as part of its religion. The Art.26(b) right is not subject to the preservation of civil rights.
Syed Shah Muhammad Kazim v Syed Abi Saghir (1932) Syed Shah Muhammad Kazim v Syed Abi Saghir 1932
Citation: All India Reporter 1932 Patna 33; 136 Indian Cases 417; judgment of 6 July 1931
Rule: A valid waqf requires a substantial dedication of the usufruct to charitable, religious or good purposes as understood in Muhammadan law. No particular form is necessary; a waqf may be inferred from royal grants in favour of individual persons so long as it was for a perpetual religious, charitable or good purpose; the dedicator need not use the word waqf nor formally transfer to God; and where there is a substantial dedication to a valid object the waqf is not vitiated because some non valid objects are also mentioned. Perpetuity is a necessary condition but need not be expressly stated, and where the named purpose is liable to failure the waqf remains valid and the property goes to the poor.
Distinctions
| Basis | Mutawalli | English Trustee |
|---|---|---|
| Title to property | None; ownership vests in God | Legal title vests in the trustee |
| Character of interest | Right of management only | Legal ownership held for the beneficiary |
| Power to alienate | Cannot alienate except for legal necessity or benefit of the waqf | May sell, mortgage or exchange within the terms of the trust |
| Remuneration | Only if the deed allows | Entitled under the trust instrument or by statute |
| Supervision | By the Waqf Board under the 1995 Act | By the court, or under a regulatory regime such as the Charities Act |
| Removal | By the Board under S.64, or by the court | By the court, or by a beneficiary's application |
| Basis | Mutawalli | Karta (Mitakshara) |
|---|---|---|
| Property | Waqf property vested in God | Coparcenary property vested jointly in the family |
| Nature of interest | No beneficial interest | A coparcener with a share |
| Power to alienate | Only for legal necessity or benefit of the waqf | For legal necessity or benefit of the estate |
| Test | Legal necessity strictly proved | Legal necessity or benefit of the estate |
| Who may challenge | The Board, a beneficiary, the waqif's descendants | Any coparcener |
| Accountability | Accounts to the Board, fiduciary to beneficiaries | Accountable to coparceners, no statutory Board |
Flashcards
Is the mutawalli a trustee in the English sense?
No. He has no estate in the property. Ownership vests in God and the mutawalli holds only a right of management.
Under what conditions may a mutawalli alienate waqf property?
Legal necessity, benefit of the waqf, established custom, or sanction of the court or Board. The general rule is inalienability.
Who may appoint a mutawalli?
The waqif in the deed or by a separate instrument, by succession under the terms of the deed, by the court where there is a vacancy and no provision, or by the Waqf Board under S.51 or S.64.
On what grounds may the Waqf Board remove a mutawalli under S.64?
Misapplication or waste, breach of trust, failure to maintain accounts, wilful disobedience of lawful Board directions, conviction involving moral turpitude, unsoundness of mind, or appointment obtained by fraud.
What is the mutawalli's duty regarding accounts?
He must maintain proper accounts and file an annual return of income, expenditure and property with the Board under S.36 and S.37.
What is the appeal mechanism against the Board's removal order?
An appeal lies before the Waqf Tribunal under S.83.
How does the alienation test for a mutawalli compare with that for a Mitakshara karta?
Both must show legal necessity, but the karta may additionally alienate for "benefit of the estate", a test wider than what the mutawalli may invoke.
Exam Scenario
Problem: Tahir is the mutawalli of a waqf comprising a building in the old city and agricultural land in the suburbs. Without consulting the State Waqf Board, he grants a 25 year lease of the building to his son in law at half the market rent, saying it is for the "benefit of the waqf" because it secures a reliable tenant. He mortgages the agricultural land to a bank to raise funds for repairing the building, again without the Board's sanction. When the Board issues a show cause notice for removal, Tahir argues that as mutawalli he has the same powers as a trustee, that the lease was a prudent act, and that the mortgage was for legal necessity. Advise.
Step 1: Fix the mutawalli's position in law
A mutawalli is a superintendent, not a trustee. He has no estate in the property and no power to deal with it as an owner.
His powers are confined to acts of administration and preservation. Alienation of waqf property is prohibited as a general rule, and any exception must be strictly proved.
Step 2: Take the lease first
| Question | Answer |
|---|---|
| Was prior sanction required? | Yes. A lease exceeding the prescribed term (typically three years) requires the Board's sanction under S.36 |
| Was the term excessive? | A 25 year lease of a waqf building at half market rent is not an ordinary letting. It amounts to a disposition of the income for a generation |
| Was the lessee independent? | No. The son in law is a close relation, raising a presumption of self-dealing |
| Was there benefit to the waqf? | No. Letting at half rent is a loss, not a benefit. "Reliable tenant" is not a compensating advantage when the reliability is secured by giving away half the income |
The lease is voidable and liable to be set aside by the Tribunal.
Step 3: Take the mortgage
A mortgage of waqf property is an alienation. The mutawalli's power to alienate exists only where:
- There is legal necessity, strictly proved.
- Or there is clear benefit to the waqf.
- And the Board's sanction under S.51 has been obtained.
The purpose here, repairing the building, may qualify as legal necessity, since the building's preservation is a duty of the mutawalli. But the mortgage was executed without the Board's sanction, which is a separate and independent defect.
The mortgage is therefore invalid for want of sanction, irrespective of whether the underlying purpose was sound.
Step 4: Test the removal grounds under S.64
| Ground | On these facts |
|---|---|
| Misapplication or waste | Half-rent lease diverts income |
| Breach of trust | Self-dealing with the son in law, and alienation without sanction |
| Wilful disobedience of lawful Board directions | Failure to obtain sanction under S.36 and S.51 |
Multiple grounds are made out, and the Board's removal order is likely to be upheld on appeal to the Tribunal.
Benefit of the waqf is an objective test. A half-rent lease to the mutawalli's own relation cannot satisfy it. "Reliable tenant" is the standard self-serving justification, and it is not enough when the price is half the income.
Sanction is a condition precedent, not a ratification. Even where the purpose qualifies as legal necessity, the mortgage is invalid if the Board's prior sanction was not obtained. The two conditions are cumulative.
The trustee analogy is Tahir's trap. By claiming the powers of a trustee he claims an estate in the property, which he does not have. The mutawalli holds a right of management only, and his powers are narrower than a trustee's, not the same.
Conclusion. The lease is voidable for want of sanction and for self-dealing at undervalue. The mortgage is invalid for want of the Board's sanction. The removal is well founded on at least three grounds under S.64.
See Also
- Waqf: Definition, Essentials and Kinds : the permanent dedication that creates the property the mutawalli manages.
- The Waqf Act 1995 and the 2025 Amendment : the statutory machinery of Boards, Tribunals and the registration system within which the mutawalli operates.
- Succession under Muslim Law: General Principles : what happens to the property of a deceased Muslim, by contrast with waqf property which never enters the estate.