The following are the four general rules regarding the appointment of a Mutawalli by a Court:
1. The court should not, as far as possible, disregard the directions of the settlor of the wakf regarding the appointment of a Mutawalli. But the primary duty of the Court is to consider the interests of the general body of the public for whose benefit the wakf is created; it may, in its judicial discretion, disregard any direction of the settlor for the manifest benefit of the endowment.
Image Source: s1.dmcdn.net
ADVERTISEMENTS:
2. Preference should be given to a member of the settlor’s family rather than a stranger, if the former is otherwise qualified to hold the office.
3. In a contest between a settlor’s lineal descendant and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendant, but has a discretion in the matter, and may in the exercise of that discretion, appoint the other claimant to be Mutawalli.
4. Where the office of Mutawalli is held jointly, it will pass, on the death of the holder, to the survivor or survivors, in the absence of any direction of the wakif or a custom to that effect. (Haji Abdul Razaq v. Sheikh Ali Baksh, (1948) 75 I.A. 172)
Problem:
A, В and С are appointed joint Mutawallis of a wakf. There is no direction in the wakfnama in regard to what is to happen if one of them were to die and there is no evidence of custom. A dies; but before that, he appoints X as a Mutawalli to succeed him. Is the appointment valid?
Ans:
ADVERTISEMENTS:
The appointment of X is invalid. The office must pass to the survivors, В and C.