Introduction

In Islamic jurisprudence, the institution of waqf represents a perpetual dedication of property for religious, charitable, or pious purposes. Once a waqf is validly created, ownership is considered divested from the founder and vested in the service of Allah, making the property inalienable. The responsibility of managing this sacred trust falls upon the Mutawalli (متولي), who acts as the manager or superintendent of waqf property.

Unlike a trustee in the English law sense, the Mutawalli is not the owner or beneficiary but a custodian charged with preserving the corpus of the waqf and ensuring that its income is applied strictly in accordance with the founder’s directions and the principles of Sharia. Over time, both classical doctrine and modern statutory frameworks have shaped the role of the Mutawalli, balancing spiritual fidelity with administrative accountability.

The Supreme Court of India in Bibi Saddiqa Fatima v. Saiyed Mohd. Mahmood Hasan, AIR 1978 SC 1362, clarified that a Mutawalli is more akin to a manager or superintendent than a trustee in the English law sense, and certainly not the owner of the waqf property. His duty is to preserve the corpus of the waqf and ensure that its usufruct (income or beneficial enjoyment) reaches the intended beneficiaries in accordance with the founder’s directions.

A Mutawalli generally cannot sell, mortgage, gift, exchange, or permanently alienate waqf property, unless:

• such authority is expressly conferred by the waqf deed; or
• permission is obtained from a competent court / statutory Waqf authority in cases of legal necessity or manifest benefit to the waqf.
• In English law, the legal title vests in the trustee, whereas in Waqf, the legal title is deemed to vest in God (Almighty).

Who May Be Appointed as a Mutawalli

Under classical Muslim law, any person may be appointed Mutawalli provided he or she:

• has attained the age of majority;
• is of sound mind; and
• is capable of discharging the duties attached to the office.

This principle was recognized in Syed Hasan v. Mir Hasan, AIR 1917 PC 71.

Eligibility

A Mutawalli may be:

• male or female;
• Muslim or, in appropriate cases, non-Muslim;
• a member of the founder’s family or an outsider.

The necessity of these qualifications—sanity, majority, and capability—was underscored in Syed Hasan v. Mir Hasan, AIR 1917 PC 71, ensuring that the administration of the trust is never compromised by legal or physical incapacity.

However, where the office includes religious or spiritual functions—such as acting as Imam, Sajjadanashin, Khatib, or Mujawar—the appointee must satisfy the religious qualifications required for that office under Islamic law.

In Shahar Bano v. Aga Mahommad Jaffer Bindaneem, (1907) 34 IA 46, the Privy Council dealt with the appointment of a Mutawalli and clarified that while there is no absolute legal prohibition against certain classes of people (like women or, by extension, non-Muslims) serving as a Mutawalli for purely secular/managerial duties, the nature of the duties is the deciding factor.

Appointment of a Minor

Generally, a minor is ineligible for appointment as a Mutawalli because the office demands legal competence and the capacity to contract. However, an exception exists where the office is hereditary or the waqf deed (Waqfnama) specifically prescribes a line of succession that includes a minor.

In the landmark case of Piran v. Abdool Karim (1891) ILR 19 Cal 203, the Calcutta High Court affirmed that while legal competence is a prerequisite for active management, a minor may validly succeed to the office through a hereditary claim. In such scenarios, the practical administration of the waqf is performed by a guardian or a substitute manager until the minor attains the age of majority.

The office of Mutawalli ordinarily devolves according to:

• the directions contained in the waqf deed;
• the lawful intention of the waqif; and
• failing such provision, appointment by competent authority.

The founder’s intention regarding succession carries great weight and should not be lightly defeated. Courts generally respect the scheme of succession laid down by the waqif unless it is impossible, unlawful, or contrary to the welfare of the waqf.

The Supreme Court has also recognized that although women may hold Mutawalliship under Muslim law, where the founder expressly restricted succession to male descendants, such intention governs succession.

Mutawalli-al-aqrab (the “nearest” Mutawalli), refers to cases where the court appoints the most suitable relative of the founder when the line of succession fails.

Where No Mutawalli Is Appointed

If a waqf is created without appointing a Mutawalli, appointment may be made by:

• the executor of the founder;
• a valid nomination by the outgoing Mutawalli (where recognized);
• the Court / competent Waqf authority; or
• in limited customary circumstances, by the congregation or community, especially in public religious waqfs.

While appointing a Mutawalli, preference is generally given to:

• the founder’s expressed wishes;
• competent members of the founder’s family; and
• persons best suited to safeguard the waqf’s objects.

Powers and Duties of a Mutawalli

Being the manager of waqf property, a Mutawalli has fiduciary and administrative obligations, including:

1. Preservation of Property

He must protect, maintain, and preserve waqf property from waste, encroachment, and deterioration.

2. Application of Income

He must ensure that the income and usufruct are applied strictly for the objects of the waqf and distributed among beneficiaries according to the founder’s directions.

3. Institution of Legal Proceedings

He may sue or defend suits to protect the waqf estate.

4. Leasing

He may grant leases within lawful limits, subject to statutory restrictions and, where required, prior sanction of the Court or Waqf Board. A Mutawalli cannot lease:

• Agricultural land for more than 3 years.
• Non-agricultural land/buildings for more than 30 years.

5. Borrowing in Necessity

Ordinarily, a Mutawalli has no unrestricted power to incur debts binding the waqf, but borrowing may be permitted in cases of necessity or benefit to the waqf with proper legal sanction.

6. Remuneration

He is entitled to remuneration only if:

• fixed by the waqf deed;
• sanctioned by custom; or
• allowed by the Court / Waqf Board.

Limitations

A Mutawalli cannot ordinarily:

• treat waqf property as personal property;
• alienate the corpus without authority;
• misapply income;
• create interests adverse to the waqf; or
• deny the waqf character of the property.

Removal of a Mutawalli

A Mutawalli may be removed by the Court or the statutory Waqf Board for valid grounds such as:

• breach of trust;
• dishonesty or misappropriation;
• gross negligence;
• failure to maintain waqf property;
• insolvency;
• incapacity or unfitness;
• denial of the waqf character of the property; or
• conduct prejudicial to the interests of the waqf.

Under Section 64 of the Waqf Act, 1995, the Waqf Board is empowered to remove a Mutawalli on specified statutory grounds. Under the Waqf Act, 1995, the Mutawalli must be given a reasonable opportunity of being heard (principles of natural justice) before removal.

Once a Mutawalli is validly appointed, the waqif ordinarily cannot remove him unless such power was expressly reserved in the waqf deed, though juristic opinion differs:

• Abu Yusuf held that the founder retains wider power of removal;
• Imam Muhammad maintained that removal is not permissible unless expressly reserved.

Modern statutory law largely governs this question in India.

Liability to Render Accounts

A Mutawalli occupies a fiduciary position and is generally accountable for the management of waqf income and expenditure. Beneficiaries may seek:

• accounts of management;
• proper distribution of their lawful share; and
• legal remedies for breach of duty.

Even where the waqf deed grants broad discretion, such discretion does not authorize mismanagement, fraud, or diversion of waqf assets.

Role of Waqf Boards under the Waqf Act, 1995

The Waqf Act, 1995 established State Waqf Boards and the Central Waqf Council to ensure proper supervision and regulation of waqf properties across India. These statutory bodies act as custodians of public interest, maintaining waqf registers, approving leases, auditing accounts, and intervening in cases of mismanagement or breach of trust.

The Boards possess quasi‑judicial powers to appoint, suspend, or remove Mutawallis under Section 64, and to sanction transactions involving waqf property only when demonstrably beneficial to the waqf. This framework bridges classical Islamic principles of fiduciary stewardship with modern administrative accountability, ensuring that waqf assets continue to serve their charitable and religious purposes in a transparent and legally protected manner.

Contemporary Developments: Statutory Reform and Judicial Oversight (2024–2026)

The Waqf (Amendment) Act, 2025 has significantly reshaped the office of the Mutawalli, moving it from a largely traditional model of stewardship toward a framework characterized by greater statutory regulation, documentation, and digital accountability. The requirement of registering waqf properties on a centralized portal, coupled with the insistence on a formal Waqfnama for new endowments, has sought to formalize waqf administration and reduce reliance on informal or historically undocumented claims, including the traditional doctrine of “waqf by user.” These reforms, while aimed at enhancing transparency and preventing mismanagement, have simultaneously subjected the Mutawalli’s office to heightened statutory oversight and regulatory compliance.

However, the centralizing thrust of the 2025 amendment has been moderated by judicial intervention. In its interim order of 15 September 2025, the Supreme Court of India declined to stay the Act in its entirety but suspended certain contentious provisions, including the clause requiring a waqif to be a “practising Muslim for five years” before creating a waqf, and the provision empowering executive authorities such as the Collector to adjudicate disputes concerning waqf and government land. The Court held that such provisions raised serious concerns relating to arbitrariness, due process, and separation of powers, thereby ensuring that legislative modernization remains subject to constitutional safeguards.

Further clarity emerged in Mulla Sarmas Vali v. State, where the Andhra Pradesh High Court reaffirmed that the appointment and removal of a Mutawalli constitute statutory functions of the Waqf Board, to be exercised strictly in accordance with the safeguards prescribed under the Waqf Act, 1995. The judgment underscores that notwithstanding reforms in governance structures—including broader representation—the legal position of the Mutawalli remains protected by procedural fairness and statutory discipline.

Accordingly, the period between 2024 and 2026 marks an important phase in the evolution of waqf law in India—one in which classical Islamic principles of waqf administration are increasingly harmonized with modern statutory governance, constitutional scrutiny, and institutional accountability.

Conclusion

The office of the Mutawalli embodies the delicate balance between faith and fiduciary responsibility. Rooted in classical Islamic law, the Mutawalli’s role is defined by stewardship, honesty, and strict adherence to the founder’s intention. He cannot treat waqf property as personal wealth, nor alienate it without lawful authority, and remains accountable to beneficiaries and regulatory bodies alike. Modern statutory frameworks, particularly the Waqf Act, 1995, reinforce these obligations by empowering Waqf Boards to supervise, audit, and, where necessary, remove Mutawallis for breach of trust or mismanagement.

Ultimately, the Mutawalli is entrusted with safeguarding property dedicated to Allah as a sacred trust, ensuring that its benefits continue to serve religious, charitable, and social purposes across generations. His role reflects a timeless principle of Islamic jurisprudence: that the administration of waqf must remain guided by justice, integrity, and unwavering fidelity to its divine purpose.