On the creation of a wakf, all rights in the Wakf property vest in God; they cease to vest in the settlor. In view of this, the mutawalli is not a trustee in the English law sense, since no properties of the Wakf vest in him. He is more like a manager, or superintendent, though he enjoys slightly better position than that of a mere manager or superintendent.
The mutawalliship of a public Wakf is in the nature of a public office. The right of management or superintendence of a mutawalli are nonetheless, the same as the rights of management of an individual owner. He is not bound, nor can he be compelled, to allow the use of Wakf properties for objects which may be laudable but are not the objects of the wakf.
Thus, the Muslim community of the locality where the mosque is situated cannot compel the mutawalli of the mosque to allow a school building to be constructed on the site attached. In a case pertaining to a private wakf, the Nagpur High Court said that the mutawalli is not a mere manager or superintendent but is “practically speaking its owner”.
ADVERTISEMENTS:
The mutawalli though not a trustee, yet he has duties similar to those of a trustee. Thus, if a Mutawalli wrongfully deprives a beneficiary of the profits of the Wakf property, he is liable to pay interest on the amount in the same way as a trustee is bound to pay it under S. 23 of the Trust Act. In Muslim law the trusteeship of the mutawalli is known as a tawliyat. In the words of Fyzee, “Apart from legal responsibilities, the performance of this obligation is a moral and religious duty, and a disregard of such duties is morally and ethically reprehensible”.
The mutawalliship, unlike the shebaitship is not property. Hindu law invests certain proprietary elements in the shebaiti right to make shebaitship itself a property. This is not so under Muslim law, where mutawalliship is no more than an office.