As a general rule, wakf property is inalienable. Unless expressly authorised so to do by the terms of the deed of wakf, a Mutawalli has no power, without the sanction of the Court,
(1) To sell, mortgage or exchange wakf property; or
(2) To grant a lease (i) for more than three years, where the wakf property is agricultural, and (ii) for more than one year, where the wakf property is non-agricultural.
Where a Mutawalli has leased wakf property for a longer term without the sanction of the Court, the Court has power to sanction the lease retrospectively, if it is satisfied that the transaction is for the benefit of the wakf. (Zafarbhai Guljarbhai v. Chhaganlal Aditram, 43 Bom. L.R. 854)
Abdul Rahim v. Narayan Das Aurora, (1923) 50 I.A. 84:
The Court removed a Mutawalli for unauthorisedly managing a wakf property, and appointed a new Mutawalli. The new Mutawalli thereafter sued to recover possession of the wakf property from the mortgagee.
The mortgagee claimed that the mortgage was, in any event, valid, as a portion of the property was settled under the deed of wakf for the benefit of the settlor’s family, as distinct from the remaining portion, which was settled for the benefit of charity. The trial Court decreed the mortgagee’s claim.
The Mutawalli appealed from this decision. The Appeal Court held that the new Mutawalli was entitled to recover possession of the whole wakf property from the mortgagee.
Where an attempt is made to grant a mortgage for a purpose foreign to the necessary purposes of the wakf, the whole mortgage fails. It cannot, for purposes of enforcement, be severed into two distinct charges, one declared for pious uses on one part of the property, and another and separate charge declared on other part for the use of the mortgagor only.
Thus, in one case, land attached to the Durgah of a Pir was granted by the Mutawalli on lease for a term of 50 years to X. No order of the Court was obtained sanctioning the said lease. X improved the property and put a building on it at cost of Rs. 5,000. The Mutawalli received the whole rent in advance from X and built a Mosque with the funds.
After 10 years, R, who was appointed Mutawalli of the Durgah, filed a suit against X and the original Mutawalli to recover possession of the land, contending that the lease in favour of X was invalid.
The Court held that the trial Court can retrospectively validate such a long-term lease by a subsequent sanction given even after the institution of the suit for setting aside the lease, provided that the lease was for necessity or beneficial to the wakf.
Wakf property cannot be attached and sold in execution of a personal decree against a Mutawalli. A Mutawalli is deemed to be a trustee. However, no suit against a Mutawalli or manager of wakf property, or against his legal representative or assigns, for the purpose of following in his or their hands such property or the proceeds thereof, or for an account of such property or the proceeds, is barred by any length of time.
Wakf property may be lost by adverse possession. See Musjid Shahidganj v. Shiromani Gurdwara Prabandhak Committee below. However, a Mutawalli’s possession cannot be adverse to the wakf. (Mohamed Shah v. Fasihuddin, (’56) A.S.C. 713)
Masjid Shahidganj v. Shiromani Gurudwara Prabandhak Committee, (1940) 67 I.A. 251:
In 1722, a mosque was built by X and dedicated as a wakf. Mutawallis were appointed, and they took possession of the mosque. After about 60 years, the mosque fell into disuse, and came into the possession of a Sikh Gurudwara, which continued the possession till 1935. In 1935, a suit was filed by some Muslims against the Sikh Gurudwara, claiming possession of the mosque and the right of worship in it.
It was held that the mosque, having been possessed by the Sikh Gurudwara adversely to the wakf for more than 12 years, the Muslims’ right to possession for the purpose of the wakf had come to end under Art. 144 of the Limitation Act and their title become extinct under S. 28 of that Act.
Even though the founder may have expressly directed that a Mutawalli should not be removed in any case, he may be removed from his office by the Court, if he is guilty of misfeasance or breach of trust or is found to be otherwise unfit to hold the office.
Thus, the Court will remove a Mutawalli in the following cases:
1. If he denies the wakf character of the property, and sets up an adverse title to it in himself. (Fazal v. Zain-ul-ab-din, 13 Lah. 162); or
2. If he neglects to repair the wakf premises, and allows them to fall into disrepair, although he has sufficient funds in his hands. (Naziuddin v. Amir Hasan, A.I.R. 1934 Pat. 443); or
3. If he knowingly and intentionally causes damage or loss to the wakf or misdeals with trust property; or
4. If he is insolvent. (Mahommedally v. Akbarally, 36 Bom. L.R. 386)
Distinction between Wakf and Sadaquah:
Under Muslim law, gifts for charity may take two forms, viz., either by way of wakf, which signifies an endowment, or else by way of sadaquah, which signifies a donation. A wakf is exempt from the rule against perpetuities (Sec. 14, Transfer of Property Act, 1882; Sec. 114, Indian Succession Act, 1925), but a sadaquah is not so exempt.
A sadaquah is distinguished from a wakf in that, in a sadaquah, not only the beneficial interest, but also the legal estate, passes to the donee, while in a wakf, the legal estate is not vested in the Mutawalli, but is, so to say, transferred to God. Hence, in the case of sadaquah, the corpus may be consumed; in the case of a wakf, the income alone can be spent.