But, on appeal, this order was set aside on the ground that as a mutawalli she would be required to perform many duties of religious nature and she being a Babi, might not take much interest in carrying out the religious observances of the Shia sect for which the Wakf was founded.
This view was upheld by the Privy Council. In Md. Isaque v. Md. Amin, the settlor appointed his son as mutawalli, and laid down that ba farzandan-perzandan (descendants) should succeed as mutawallis. It was held that the use of the words “ba farzandan” did not exclude daughters of male descendants, but excluded children of daughters.
In Ali Asghar v. Fariuddin, a settlor constituted himself as the first mutawalli and laid down that after his death P would be the mutawalli. The settlor resigned from the office of mutawalli and appointed R as mutawalli. P disputed this appointment.
The court held that P was entitled to mutawalliship only after the death of the settlor, and if the settlor resigned during his life time, he could fill the vacancy by nominating any person as mutawalli. Such an appointment would be valid only during his life time. On the death of the settlor, P would be entitled to mutawalliship.
Similarly, where a wakif has reserved to himself the power of appointment of mutawalli, he can appoint any person as mutawalli but the power of appointment does not confer on him the power of dismissal. He can dismiss a mutawalli only if he had reserved such a power.
In Falanddin v. Tqjuddin, it has been held that mode of succession to the office of mutawalli and sajjadanashin would be in accordance with law or custom. They are stricto serisu not hereditary and not governed by rule of primogeniture.
Since under the Shia law a Wakf is not valid till the delivery of possession is made to mutawalli or the beneficiaries, the founder of a Shia Wakf becomes Junctus officio after he had transferred the possession.
If he has not appointed a mutawalli, or has settled no scheme, then after the delivery of possession, he has no such power. Undoubtedly, he can make an appointment, or settle a scheme, at any time before the delivery of possession.
Mutawalli’s Power of Appointment:
In case the founder and his executor both are dead and the Wakf deed does not lay down any scheme of succession, then the outgoing mutawalli may appoint his successor on his death bed. But he has no such power in health.
In the absence of express provision of the wakf-nama, the office of mutawalli cannot go by hereditary right to the heirs of mutawalli. Although under Muslim law the office of mutawalli is not hereditary, it may become so by customs.
When two or more mutawallis are appointed as joint mutawallis, and the, wakf-nama is silent as to what is to be done in the event of death of one of them, then the office will pass on by survivorship to the surviving mutawallis.
Court’s Power of Appointment:
At one time it was contended that under Muslim law the court has no independent power of appointing a mutawalli; what it could do was to give effect to the scheme, if any, laid down by the wakif in all matters including appointment and succession to the office of mutawalli. When this contention was raised before the Privy Council in Md. Ismail v. Ahmed Moola, it made a distinction between a private Wakf and public wakf.
In respect of private wakfs, i.e., those created for specific individuals or a determinate body of individuals, the courts are required to give effect, so far as possible, to the wishes of the founder. But in respect of public wakf, the courts exercise very wide discretion. 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.
The court will try to give effect, to the wishes of the settlor so as they are comfortable to the changed conditions and circumstances, but its primary concern and foremost duty is to take into consideration the interest of the general public for whose benefit the Wakf is created.
And, if the court deems it necessary, it may vary or alter any rules of management which it considers to be neither practicable nor in the best interest of the wakf. This applies to appointment of mutawallis, as well.
In all those cases where the founder has not appointed a mutawalli or his appointment cannot be given effect to, then the court has the power of appointing mutawalli. When the court appoints a mutawalli, it will take into consideration: (a) the direction, if any, given by the founder (the court has the discretion to disregard any direction of the wakif if it feels that to do so will be to the manifest advantage of the wakf); (b) if there is any member of the founder’s family who is qualified and available (but if no qualified member of the founder’s family is available, then a stranger may be appointed); and (c) among the relations of the settlor who are available for appointment, the court will appoint the most appropriate person irrespective of the nearness of kin to the settlor (when the choice is between lineal descendant and remoter relations, the court is not bound to appoint the former).
Where there are more than one mutawalli, and one of them dies, resigns or is removed, then the court has power to fill in the vacancy by making an appointment. In such a case it is not necessary to file a regular suit under S. 92, C.P.C. It can be done by an application to the court. However, before making the appointment the court should issue notices to all persons who are interested in the appointment.
The power of appointment of mutawalli is vested in the District Court.
Appointment by Congregation:
Where a Wakf is a purely local wakf, such as a graveyard or a mosque, then the appointment of mutawalli may be made by the congregation of the locality.