In Abdur Rahim v. Hachimur Raze, a mutawalli was removed on the charge that he made an unauthorized mortgage of Wakf properties, and another person was appointed as mutawalli When the new mutawalli claimed to recover possession of the mortgaged properties from the mortgagee, the latter asserted that the mortgage was valid as to that portion of the properties which was settled for the benefit of wakif s family. His Lordship of the Privy Council rejected the contention and observed that it was inconsistent with the basic concept of wakf.
Alienation with the permission of the court:
It is now well-settled that a mutawalli can alienate the Wakf properties with the prior sanction of the court. Thus, if a mutawalli wants to sell, mortgage or exchange the Wakf properties, he must obtain prior permission of the court.
There is some controversy among the High Court’s as to whether for obtaining permission of the court for alienating the property a suit has to be filed or whether this can be done by putting in an application under the Trustees Act, 1866.
An alienation made by a mutawalli without the prior permission of the court is not void ab initio. It is merely voidable. Acting on this principle the Calcutta, Madras and Allahabad High Courts and the Chief Court of Oudh have held that a mortgage made without the prior permission of the court may be retrospectively confirmed by the court. It should be noted that these courts proceeded on the assumption that alienation was necessary for carrying out the object of the wakf.
An unauthorized alienation can be challenged by any beneficiary, it is not necessary to bring a representative suit.
Mutawalli’s power of granting lease:
Ordinarily, a mutawalli cannot grant a lease of the Wakf property for more than three years if it is agricultural land, and more than one year if it is non-agricultural property. A lease for longer duration may be granted if the Wakf deed specifically permits him to do so. Leases for longer periods may be given with the prior permission of the court.
The court has power to sanction leases in the interest of wakf, even if the wakf-deed specifically prohibits a mutawalli to do so. In Zhfarbhai vs. Chaganlal, the Bombay High Court and in Sundaramurthi v. Choti Bibi, the Madras High Court held that unauthorized lease can be confirmed retrospectively.
Since an unauthorized lease is not void but merely voidable, it is binding on the mutawalli personally, and during his life time, he cannot repudiate it or evict the lessee. In Shah Md. v. Manzoor Ali, a mutawalli granted a permanent lease of agricultural land.
The Patna High Court held that the lease was valid for the first three years, and since nothing was done to avoid it thereafter, the lessee’s possession continued to be lawful and was not that of a trespasser.
Power of taking debt:
A mutawalli has no power of incurring a debt. A person, who advances loan to a mutawalli for carrying out the purposes of the wakf, has no remedy against the Wakf properties. He cannot claim to be indemnified out of the Wakf funds. A decree passed against the mutawalli will not be binding against Wakf properties, unless it specifically says so.
Power to file a suit:
Before the coming into force of the Wakf Act, 1945, the mutawalli could file a suit relating to a wakf, but after the coming into force of the Act, the power to file suit is vested in the Wakf Board under whose supervision mutawallis have to work.