FAMILY LAW-II (Muslim Law and Other Personal Laws) Unit IV:

PAPER – II:

FAMILY LAW-II (Muslim Law and Other Personal Laws)

Unit IV:

1. Define ‘Gift’ under Muslim Law. What are the essential requisites for a valid gift, and how can a gift be revoked under Muslim Law?

In Muslim Law, a gift is defined as the voluntary transfer of property or ownership by one person (the donor) to another (the donee) without any consideration, during the lifetime of the donor. This concept of gift is known as “Hiba”. The essential nature of a gift is that it must be immediate, unconditional, and without any expectation of return.

Requisites of a Valid Gift (Hiba):

To constitute a valid gift under Muslim Law, the following three essential elements must be fulfilled:

Declaration by the Donor:
There must be a clear and bona fide intention of the donor to make a gift. The declaration must be voluntary and not under coercion or fraud.
Acceptance by the Donee:
The donee must accept the gift during the lifetime of the donor. If the donee is a minor or of unsound mind, acceptance can be made by a guardian.
Delivery of Possession:
Actual or constructive delivery of possession of the subject matter of the gift must take place. Without transfer of possession, the gift is not complete, except in the case of a gift from a father to his minor child living with him.

These three conditions must coexist for a gift to be considered legally valid in Muslim Law.

Revocation of Gift:

Although Muslim Law permits gifts, it also recognizes that under certain conditions a gift can be revoked, but only before delivery of possession. Once possession is delivered, the gift becomes irrevocable, except in certain cases.

However, under Shia Law, even after possession, a gift can be revoked with the permission of the court, unless:

The gift is made to a spouse or close relative.
The gift is in return for something (Hiba-bil-iwaz).

Also, a gift made during death illness (marz-ul-maut) can be revoked if it exceeds one-third of the estate and is not approved by legal heirs.

Conclusion:

Thus, a gift under Muslim Law is a simple yet strictly regulated transfer. Its validity depends on declaration, acceptance, and delivery of possession. After possession, revocation becomes extremely limited, ensuring the sanctity and finality of the donor’s act.

2. Discuss the various kinds of gifts recognized under Muslim Law. How do these differ in terms of legal implications and formalities?

Under Muslim Law, the concept of gift (Hiba) plays a significant role in the voluntary transfer of property. Muslim Law recognizes several types of gifts, each with distinct legal implications and formalities. These variations depend on the nature of the gift, the relationship between donor and donee, and the presence or absence of consideration.

1. Hiba (Simple Gift):

This is the most common form of gift, where a donor transfers property voluntarily to a donee without any consideration. It requires:

Declaration of gift by the donor.
Acceptance by the donee.
Delivery of possession.

Once these conditions are fulfilled, the gift becomes irrevocable. It does not require writing or registration unless the property is immovable under general law.

2. Hiba-bil-Iwaz (Gift for Consideration):

This is a gift made in return for some consideration or exchange. Though it appears similar to a sale, the consideration is given after the gift. It has two stages:

A gift made by the donor.
Payment of consideration (iwaz) by the donee.

Unlike Hiba, it resembles a sale transaction and is revocable until consideration is paid. After payment, it becomes irrevocable and does not require delivery of possession.

3. Hiba-ba-Shart-ul-Iwaz (Gift with a Condition of Return):

This is a conditional gift where the donor makes a gift with the condition that the donee will give something in return. It is a contract-like arrangement and involves:

An express condition at the time of the gift.
Subsequent transfer of return gift.

Legal formalities are stricter here, and it resembles a bilateral agreement. Revocation is not permitted once the condition is fulfilled.

4. Ariyat (Gratuitous Loan of Property):

Ariyat is not a gift in the strict sense but a temporary transfer of property for use without ownership. The ownership remains with the donor. It is revocable at the donor’s will.

5. Sadqa (Charitable Gift):

Sadqa refers to a gift made for religious or charitable purposes, often as a form of piety or to gain spiritual merit. Once completed, it is irrevocable and cannot be taken back by the donor.

6. Musha (Gift of Undivided Property):

Musha is a gift of an undivided share in a jointly held property. Under Sunni Law, such gifts are valid if possession can be delivered. Under Shia Law, however, Musha is generally invalid unless the property is divisible and separate possession is given.

Legal Implications and Formalities:

Type of Gift	Possession Required	Consideration Involved	Revocable	Registration Required
Hiba	Yes	No	No	Not necessarily
Hiba-bil-Iwaz	No (after payment)	Yes (after gift)	No	Yes (for immovable)
Hiba-ba-Shart-ul-Iwaz	Yes	Yes (conditional)	No	Yes (usually)
Ariyat	No (temporary use)	No	Yes	No
Sadqa	Yes	No	No	No
Musha	Yes (in Sunni Law)	No	No	Depends on property

Conclusion:

Muslim Law provides a flexible but well-structured framework for different types of gifts. Each kind has its own requirements, legal effects, and enforceability. Understanding the nature of each is crucial for ensuring compliance with Islamic legal principles and protecting the interests of both donor and donee.

3. Explain the concept of a ‘Will’ in Muslim Law. What are the essential conditions for a valid Will? Also, describe how a Will can be revoked.

In Muslim Law, a Will (called Wasiyat) is defined as a testamentary disposition of property, made voluntarily by a Muslim, to take effect after his death. It enables a person to make provisions for the distribution of a part of his property in favor of any person or cause he chooses, within prescribed legal limits. The concept of Will in Islamic jurisprudence is deeply rooted in the idea of charity (Sadqa) and duty (Farz), especially towards dependents and the needy.

Essentials of a Valid Will in Muslim Law:

To be valid, a Will must satisfy the following essential conditions:

1. Competency of the Testator:

The testator (person making the Will) must be a Muslim, of sound mind, and have attained the age of majority (usually 18 years, or 21 if under a guardian).
He must be capable of understanding the legal consequences of his act.

2. Competency of the Legatee (Person in Whose Favor the Will is Made):

The legatee can be any person, Muslim or non-Muslim, relative or stranger.
However, a Will cannot benefit an heir unless other legal heirs give their consent after the testator’s death.

3. Subject Matter of the Will:

The Will must relate to property owned by the testator at the time of death.
The property must be transferable and lawful under Islamic Law.

4. Limit on Bequeathable Property:

A Muslim can bequeath only up to one-third of his total property through a Will.
If the Will exceeds this one-third limit, it is valid only if the legal heirs consent to the excess portion.

5. Free Consent and Intention:

The Will must be made voluntarily, without coercion, fraud, or undue influence.
It must clearly express the testator’s intention to take effect after death.

6. Formalities:

No written form or registration is required under Muslim Law, though a written Will is preferred for clarity.
An oral Will is also valid if clearly made and proved.

Revocation of a Will:

Under Muslim Law, a Will is revocable at any time before the death of the testator. The revocation can be:

1. Express Revocation:

The testator may revoke the Will by making a clear statement or writing a new Will.

2. Implied Revocation:

If the testator disposes of the property by sale, gift, or another Will, it automatically implies revocation.

3. Destruction of the Will Document:

If the testator destroys the written Will himself with the intention to revoke it, it stands revoked.

After the testator’s death, the Will becomes irrevocable and must be executed in accordance with Muslim personal law and the limits prescribed.

Conclusion:

A Will in Muslim Law is a flexible tool allowing a person to manage the distribution of a portion of his property after death. However, it is subject to certain strict limitations—most notably the one-third rule and the prohibition against disinheriting legal heirs without consent. The freedom to revoke the Will before death ensures the testator retains full control over his property during his lifetime.

4. Distinguish between a ‘Gift’ and a ‘Will’ under Muslim Law. How does the timing of transfer of ownership affect this distinction?

Under Muslim Law, both Gift (Hiba) and Will (Wasiyat) are means of transferring property. However, they are fundamentally different in terms of their nature, execution, legal requirements, and timing of transfer of ownership. The most crucial distinction lies in when the transfer of ownership takes place—during life (gift) or after death (will).

Key Differences Between Gift and Will:

Basis	Gift (Hiba)	Will (Wasiyat)
Meaning	A voluntary transfer of property during the donor’s lifetime without consideration.	A declaration by a person regarding disposal of property to take effect after his death.
Timing of Transfer	Takes effect immediately during the lifetime of the donor.	Takes effect only after the death of the testator.
Possession	Delivery of possession is essential for a valid gift.	Possession is not delivered during lifetime; it passes after death.
Revocability	Once possession is delivered, a gift becomes irrevocable (with minor exceptions).	A will is revocable any time before the death of the testator.
Consent of Donee/Legatee	Donee must accept the gift during donor’s life.	Legatee’s acceptance is not essential before testator’s death.
Limit on Transfer	No such limit; a person can gift entire property.	Only one-third of the estate can be bequeathed without heirs’ consent.
Heirs’ Consent	Not required for a valid gift, even if made to a legal heir.	Required if the will benefits a legal heir or exceeds one-third of the estate.
Consideration	Made without consideration.	Also made without consideration, as it is gratuitous.
Formalities	Oral or written; delivery of possession is key.	Oral or written; no delivery of possession required.
Ownership Status	Ownership is transferred immediately.	Ownership is transferred only after death and is uncertain until then.

Timing of Transfer of Ownership:

The timing of transfer is the most significant difference between a gift and a will in Muslim Law.

In a gift, the transfer of ownership is inter vivos (between living persons), which means the donee becomes the owner as soon as possession is delivered. It is immediate and complete in nature.
In contrast, a will takes effect only after the death of the person making it. Until death, the testator retains complete control over the property and may revoke or alter the will. Hence, the ownership under a will is not certain until the testator dies.

This distinction is vital because Muslim Law prohibits making uncertain or future transfers except through a will, and imposes limits to ensure fairness, particularly to heirs.

Conclusion:

While both gift and will are instruments of transferring property in Muslim Law, they serve different purposes and operate under different legal frameworks. A gift is a present and complete transfer, while a will is a posthumous and conditional disposition. The timing of ownership transfer marks the core difference, influencing the formalities, limitations, and legal consequences attached to each.

5. Compare and contrast the Shia and Sunni laws of Gift and Will. Highlight at least five major points of difference with relevant legal principles.

Muslim personal law is divided mainly into two schools: Sunni and Shia, each with its own interpretation of legal principles. Though the foundational concepts of Gift (Hiba) and Will (Wasiyat) are common in both, the rules governing their validity, formalities, and limitations differ significantly. These differences reflect the doctrinal and juristic variations between the two sects.

Key Differences between Sunni and Shia Law of Gift and Will:

Point of Difference	Sunni Law	Shia Law
1. Delivery of Possession (Gift)	In Sunni law, delivery of possession is essential for the validity of a gift. Without it, the gift is incomplete, even if in writing.	Shia law does not require delivery of possession when the gift is made through a written document or by declaration.
2. Gift of Musha (Undivided Share)	A gift of Musha (undivided share in a jointly held property) is valid only if possession can be delivered.	Shia law invalidates gifts of Musha in divisible properties unless specific portions are demarcated and handed over.
3. Revocation of Gift	In Sunni law, a gift becomes irrevocable after delivery of possession.	In Shia law, a gift is revocable even after possession, unless made to a close relative like spouse or child.
4. Bequest to Heirs (Will)	Under Sunni law, a Muslim cannot make a Will in favor of a legal heir unless other heirs consent after death.	The same restriction applies under Shia law, but some Shia jurists allow limited bequests to heirs without consent under specific circumstances.
5. Bequeathable Limit	Both schools restrict a person to bequeath only one-third of the estate without heirs’ consent. However, Sunni law is stricter about this limit.	Shia law also follows the one-third rule, but is more flexible, allowing conditional or trust-based bequests with greater scope.
6. Formalities of Will	No specific formalities required; oral or written Will is valid if intention is clear.	Shia law gives more importance to written declarations, especially when there are multiple heirs or property types involved.

Explanation of Key Points:

1. Delivery of Possession in Gift:

Sunni law emphasizes physical transfer, without which the gift is not complete. For example, gifting a house requires handing over the keys or allowing the donee to enter and use the property. Shia law, on the other hand, recognizes the intention and documentation of the donor, even if the property remains in donor’s possession.

2. Gift of Undivided Property (Musha):

Sunni law permits gifts of Musha if possession can be practically delivered, e.g., in case of joint land holdings. Shia law treats such gifts as invalid, arguing that a gift must relate to a clearly identifiable and separate portion of property.

3. Revocation Rules:

Sunni law upholds the finality of gift once possession is delivered. Shia law allows the donor to revoke the gift even after possession, unless the gift is to a close relative, reflecting their belief in the donor’s ongoing control.

4. Will in Favor of Legal Heirs:

Both schools restrict disinheriting legal heirs through a Will. However, Shia law shows more pragmatism in recognizing Wills that serve equitable or moral purposes, such as supporting a needy heir.

5. Bequeathable One-Third Rule:

Sunni law mandates that any Will exceeding one-third of the estate is automatically invalid without heirs’ consent. Shia law allows some conditional flexibility, especially if the remaining estate suffices for the heirs’ needs.

Conclusion:

Though the fundamental structure of Gift and Will remains consistent across Sunni and Shia laws, the interpretational nuances lead to key distinctions. Sunni law focuses more on formalities like possession and physical transfer, whereas Shia law emphasizes intention, documentation, and flexibility. Understanding these differences is crucial for the proper application of Muslim personal law, especially in jurisdictions with diverse Muslim populations.

6. Define ‘Waqf’ under Muslim Law. What are the essential conditions for a valid Waqf? Also, explain its irrevocability.

In Muslim Law, the term ‘Waqf’ (also spelled Wakf) refers to the permanent dedication of property by a Muslim for a religious, pious, or charitable purpose. It is a unique Islamic institution that promotes philanthropy and social welfare by ensuring that certain properties are preserved in perpetuity for the benefit of the community or for fulfilling religious obligations.

Definition of Waqf:

According to Muslim jurists, Waqf is the detention of a property in such a manner that its corpus (ownership) is preserved, and its usufruct (income or benefits) is used for religious or charitable purposes.

As per Section 3(r) of the Waqf Act, 1995, Waqf means:

“The permanent dedication by any person of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable…”

The person making the dedication is called the Waqif, and the person managing the Waqf property is the Mutawalli.

Essentials of a Valid Waqf:

To constitute a valid Waqf under Muslim Law, the following conditions must be satisfied:

1. Permanent Dedication:

The dedication must be absolute, unconditional, and perpetual.
A temporary Waqf is not valid.

2. Ownership of Property:

The Waqif must own the property at the time of dedication.
It can be movable or immovable, but must be tangible and capable of yielding benefits.

3. Competency of the Waqif:

The person creating the Waqf must be a Muslim, of sound mind, and major.
In certain cases, even non-Muslims can create Waqfs for purposes recognized in Islam.

4. Purpose of the Waqf:

The object must be recognized as pious, religious, or charitable in Islam, such as building mosques, madrasas, providing for the poor, or supporting pilgrims.

5. Complete Dedication of Property:

The Waqif must relinquish all rights and transfer the property for the specified purpose.
Once created, the property no longer belongs to the Waqif or anyone else.

6. Declaration of Waqf:

There must be a clear and unambiguous declaration, either oral or written.
Acceptance by a Mutawalli is not mandatory for creation, but essential for management.

Irrevocability of Waqf:

One of the most fundamental features of Waqf is its irrevocability:

Once a Waqf is created, it cannot be revoked by the Waqif or anyone else.
The property becomes vested in God, and no one has ownership rights over it.
Even if the Waqif regrets his act or if the purpose is fulfilled, he cannot reclaim the property.

This principle ensures the permanence and sanctity of charitable dedication and protects the interest of the beneficiaries.

Conclusion:

Waqf under Muslim Law is a sacred and enduring dedication meant to serve religious and societal needs. Its essential elements—permanence, dedication, and pious purpose—ensure that the property is preserved and utilized for the welfare of others. The principle of irrevocability distinguishes Waqf from other transfers, reflecting its spiritual and legal significance in Islamic jurisprudence.

7. Discuss the different kinds of Waqf under Muslim Law. How is a Waqf created and what are the limitations on its revocation?

In Muslim Law, Waqf is a permanent dedication of property for religious, pious, or charitable purposes. It is a unique Islamic institution designed to promote public welfare and spiritual benefit through the preservation and use of assets. Over centuries, Islamic jurists have classified Waqf into several types based on its objectives, beneficiaries, and mode of creation.

Kinds of Waqf under Muslim Law:

Muslim Law recognizes various types of Waqf, including the following:

1. Waqf by User (Waqf-al-aulad):

This Waqf is created for the benefit of the Waqif’s family members, descendants, and later for charitable purposes. Initially, the income is used for personal or family benefit, and upon extinction of the family line, the property is applied to charitable purposes.

2. Public Waqf:

This Waqf is created exclusively for the public or community, for purposes such as maintaining mosques, madrasas, burial grounds, hospitals, or orphanages. It must serve a cause recognized as pious or charitable in Islam.

3. Private Waqf (Waqf alal-aulad):

Here, the property is dedicated to the descendants or specified persons. Although it serves private interests initially, it is ultimately meant for charitable use after the extinction of the family.

4. Waqf by Implied Dedication:

In certain cases, a Waqf may be inferred from long-standing use of property for religious or charitable purposes, even if no express declaration is made. Courts may recognize this based on circumstantial evidence.

5. Waqf by Will (Testamentary Waqf):

A person may create a Waqf through a will, subject to the limitation that only one-third of the estate can be dedicated by will, and only if legal heirs consent.

Creation of Waqf:

A valid Waqf must be created by a clear and complete act of dedication. The process includes:

1. Declaration of Intention:

The Waqif must make a definite and unambiguous declaration that he is permanently dedicating the property for a valid purpose.

2. Competency of the Waqif:

The Waqif must be a Muslim, of sound mind and legal age, and must own the property.

3. Valid Object:

The object or purpose must be religious, pious, or charitable in the eyes of Islamic law. For instance, using the property for a mosque, education, or feeding the poor.

4. Detachment of Ownership:

The Waqif must completely give up ownership. Once declared, the property is considered to be vested in Allah, and the Waqif has no proprietary rights left.

5. Appointment of Mutawalli:

Although not essential for the creation of Waqf, appointing a Mutawalli (manager or trustee) ensures smooth administration.

Limitations on Revocation of Waqf:

One of the most critical features of Waqf is its irrevocability. Once validly created, a Waqf cannot be revoked, except in very narrow circumstances:

Absolute Prohibition on Revocation: After a valid declaration and dedication, the Waqf becomes permanent and cannot be cancelled by the Waqif or his heirs.
Exception in Marz-ul-Maut (Death Illness): A Waqf made during the death illness of a person (when death is imminent) is subject to the rule that only one-third of the property can be validly dedicated without the heirs’ consent.
Judicial Interference: A court may interfere only if the Waqf is proven to be fraudulent, invalid, or not for a proper purpose, but cannot revoke a lawful Waqf.

Conclusion:

Waqf is a well-established Islamic legal institution that supports both private and public welfare. Its different forms—public, private, testamentary—enable Muslims to contribute to the community in various ways. However, the principles of permanence and irrevocability ensure that once property is dedicated for Waqf, it is preserved forever for the intended charitable or religious purpose. This structure reflects the spirit of enduring charity in Islamic jurisprudence.

8. Critically examine the salient features of the Waqf Act, 1995. How does the Act aim to regulate and protect Waqf properties in India?

The Waqf Act, 1995 is a comprehensive legislation enacted by the Indian Parliament to regulate the administration of Waqf properties and to ensure their proper use and protection. It repealed the earlier Waqf Act, 1954 and introduced a more structured and uniform legal framework. The Act applies to all Waqfs in India except those in Jammu & Kashmir (before the abrogation of Article 370).

The Act recognizes the importance of Waqf as a religious and charitable institution and provides for the management of Waqf properties by dedicated bodies while ensuring accountability and transparency.

Salient Features of the Waqf Act, 1995:

1. Establishment of Central and State Waqf Boards:

The Act mandates the establishment of State Waqf Boards to supervise and manage Waqf properties.
A Central Waqf Council is constituted to advise the government and coordinate activities between various State Boards.

2. Definition and Survey of Waqf Properties:

The Act gives a comprehensive definition of Waqf, including both public and private waqfs.
It requires the state government to conduct a detailed survey of all Waqf properties and maintain updated records to prevent encroachment and misuse.

3. Registration of Waqfs:

All Waqfs must be registered with the State Waqf Board, which maintains a Waqf Register containing details like the name of the Waqif, nature and purpose of the Waqf, property details, and the name of the Mutawalli.

4. Appointment and Duties of Mutawalli:

The Act outlines the qualifications, appointment, powers, and duties of Mutawallis (managers).
They are accountable to the Waqf Board and must maintain proper accounts and utilize income only for the designated purposes.

5. Prevention of Encroachment and Mismanagement:

The Act provides stringent provisions against unauthorized occupation or encroachment of Waqf properties.
The Board has the power to initiate proceedings for eviction, and penalties can be imposed on offenders.

6. Financial Oversight and Audit:

The Mutawalli is required to maintain accounts and annual budgets.
The Waqf Board ensures audit and financial supervision, enhancing transparency and reducing misappropriation.

7. Establishment of Waqf Tribunals:

The Act provides for the creation of Waqf Tribunals to adjudicate disputes related to Waqf property.
Civil courts are barred from hearing such matters, ensuring specialized and speedy resolution.

8. Development of Waqf Property:

The Act encourages the commercial development of Waqf properties to increase income, provided it does not violate the religious or charitable purpose of the Waqf.

Protection and Regulation of Waqf Properties:

The Waqf Act, 1995 seeks to protect Waqf properties through:

Legal recognition and detailed record-keeping.
Judicial forums dedicated to Waqf disputes (tribunals).
Enabling State Boards to act as custodians of Waqf interests.
Imposing penalties for illegal sale, transfer, or encroachment.
Requiring regular audits and submission of annual reports for accountability.

Critical Evaluation:

Strengths:
- Provides a well-structured administrative and legal framework.
- Encourages proper maintenance and development of religious assets.
- Ensures protection of Waqf properties from encroachments.
Limitations:
- Implementation and enforcement remain weak in many states.
- Encroachments continue due to political or bureaucratic interference.
- Some Waqf Boards lack sufficient funding, manpower, or training.
- Delay in appointment of officials and updating records affects efficiency.

Conclusion:

The Waqf Act, 1995 is a significant legislative measure aimed at preserving, regulating, and strengthening the institution of Waqf in India. While its provisions are comprehensive and well-intentioned, effective implementation, active monitoring, and strict enforcement are necessary to protect Waqf properties and ensure that they continue to serve the religious and charitable purposes for which they were originally endowed.

9. Who can be appointed as a Mutawalli? Discuss the powers, duties, and grounds for removal of a Mutawalli under Muslim Law and the Waqf Act, 1995.

A Mutawalli is the manager or superintendent of a Waqf property, entrusted with the responsibility to administer and safeguard the Waqf in accordance with its objectives. While the Mutawalli is not the owner of the Waqf property (ownership is vested in Allah), he holds a position of trust and must ensure that the income and use of the Waqf fulfill religious, pious, or charitable purposes.

Who Can Be Appointed as a Mutawalli?

Under Muslim Law and the Waqf Act, 1995, the following individuals can be appointed as Mutawalli:

By the Waqif (Creator of Waqf):
The Waqif has the first right to appoint a Mutawalli in the Waqf deed or at the time of dedication.
By Successors:
If the Waqif has not appointed anyone, or the position falls vacant, then the successors of the Waqif may appoint a Mutawalli, if allowed in the deed.
By the Court or Waqf Board:
If no appointment is made or there is a dispute, the State Waqf Board or Tribunal may appoint a suitable person to manage the Waqf.
Eligibility Criteria:
- Must be a Muslim of sound mind and of majority age.
- Must be honest, competent, and able to manage the property.
- Gender is not a bar under Muslim law, but in certain cases (e.g., managing a mosque), a male Mutawalli may be preferred.
- A non-Muslim cannot be appointed unless the Waqf purpose allows it and it is not religious in nature.

Powers of a Mutawalli:

The Mutawalli acts as a trustee and custodian. His powers are limited to administration and maintenance, not ownership. His powers include:

Maintenance and Management:
Ensure proper care, repair, and protection of Waqf property.
Utilization of Income:
Use the income strictly for the purposes laid out in the Waqf deed, such as religious, educational, or charitable causes.
Leasing Property:
With the permission of the Waqf Board, a Mutawalli may lease out Waqf property for a limited period to generate income.
Legal Representation:
Can sue or be sued in matters related to Waqf property in the capacity of manager.
Employ Staff:
Appoint staff or assistants necessary for the smooth functioning of Waqf institutions (like Imams, teachers, etc.).

Note: Mutawalli cannot sell or transfer Waqf property without prior approval of the Waqf Board and justification that it is for the benefit of the Waqf.

Duties of a Mutawalli:

Fiduciary Duty:
Must act in good faith and with loyalty to the purpose of the Waqf.
Accountability:
Maintain accurate records and accounts, and submit them to the Waqf Board annually.
Execution of Purpose:
Ensure the property is used exclusively for the religious or charitable objective of the Waqf.
Compliance with Law:
Follow directions of the Waqf Board, and act in accordance with the Waqf deed and the Waqf Act.

Grounds for Removal of a Mutawalli:

Under Muslim Law and Section 64 of the Waqf Act, 1995, a Mutawalli can be removed by the Waqf Board on any of the following grounds:

Mismanagement or Misappropriation:
If found guilty of embezzlement, fraud, or diversion of Waqf funds.
Incompetence or Negligence:
If the Mutawalli fails to maintain the Waqf property or neglects duties leading to loss or deterioration.
Violation of Waqf Objectives:
If he uses the property contrary to the purpose for which it was dedicated.
Insolvency or Conviction:
If declared insolvent or convicted of an offense involving moral turpitude.
Failure to Submit Accounts:
Non-compliance in submitting account statements, budgets, or audit reports.
Physical or Mental Incapacity:
If the Mutawalli becomes mentally unsound or physically incapable of performing duties.
Death or Resignation:
Naturally, the office falls vacant upon death or voluntary resignation.

The Waqf Board may conduct an inquiry before removal and provide the Mutawalli a reasonable opportunity to be heard.

Conclusion:

The role of a Mutawalli is of great responsibility and trust. While he does not own the Waqf property, he is bound to faithfully manage it in accordance with the Waqf deed and Islamic principles. The Waqf Act, 1995 strengthens accountability by granting powers to the Waqf Board to appoint, supervise, and remove Mutawallis when necessary. This legal structure ensures that the sacred institution of Waqf continues to serve its rightful religious and social purpose without misuse.

10. Explain the role, jurisdiction, and powers of Waqf Tribunals under the Waqf Act, 1995. How effective are these tribunals in resolving disputes related to Waqf properties?

The Waqf Act, 1995 introduced several reforms to protect and manage Waqf properties in India, one of the most significant being the establishment of Waqf Tribunals. These tribunals were created to provide specialized, speedy, and effective adjudication of disputes related to Waqf properties, which were previously being delayed or mishandled in regular civil courts.

Role of Waqf Tribunals:

Waqf Tribunals act as quasi-judicial bodies set up under Section 83 of the Waqf Act, 1995. They are responsible for resolving disputes, questions, or matters relating to Waqf properties. Their primary role is to ensure that Waqf properties are used in accordance with the objectives of the Waqf and to prevent mismanagement, encroachments, or unlawful transfers.

The Act empowers the State Government to establish one or more Tribunals for a region and prescribe their jurisdiction and composition. Each Tribunal typically consists of:

A judicial officer (usually a District Judge or equivalent) as Chairman.
One member from the State Civil Services.
One person with expertise in Muslim Law.

Jurisdiction and Powers of Waqf Tribunals:

1. Exclusive Jurisdiction (Section 85):

Waqf Tribunals have exclusive jurisdiction, meaning that civil courts do not have authority to entertain suits or disputes relating to:

Title of Waqf property.
Rights and duties of Mutawalli.
Alienation, sale, or transfer of Waqf property.
Encroachments and illegal occupation.
Any matter specified under the Act.

2. Scope of Jurisdiction:

Under Section 83(1), the Tribunal may adjudicate:

Whether a particular property is Waqf property.
Whether a person is a lawful Mutawalli or not.
Removal or appointment of a Mutawalli.
Disputes between Waqf Board and tenants, encroachers, or third parties.
Claims for compensation or eviction from Waqf land.

3. Power to Evict Encroachers (Section 54):

Tribunals have the power to:

Issue eviction orders against unauthorized occupants of Waqf property.
Impose penalties and recover damages.

4. Execution of Decisions:

Tribunal orders are binding and enforceable like a decree of a civil court. Waqf Boards can seek assistance of the District Collector or Magistrate for execution.

5. Appeal and Finality:

No regular appeal lies against the decision of the Tribunal.
However, a revision or review can be filed before the High Court under specific circumstances.
The decisions of the Tribunal are final and binding on the parties.

Effectiveness of Waqf Tribunals:

Strengths:

Specialized adjudication by experts in Waqf and Muslim law.
Exclusive jurisdiction helps avoid delays common in civil litigation.
Provides a dedicated platform for resolution of Waqf-related disputes.
Powers of enforcement and eviction help in protecting Waqf properties from encroachment.

Challenges:

In some states, Tribunals are not fully functional due to lack of appointments or infrastructure.
Delays in disposal of cases still occur due to limited number of tribunals.
Execution of tribunal orders can be difficult when powerful encroachers or political interests are involved.
There is no uniformity in procedure and enforcement across different states.

Conclusion:

Waqf Tribunals are a vital institutional mechanism under the Waqf Act, 1995, aimed at ensuring efficient, fair, and focused resolution of Waqf-related disputes. Their specialized nature allows for better understanding of Islamic principles, administrative needs, and statutory requirements. While the concept is progressive and powerful in theory, the effectiveness of Tribunals depends on proper implementation, timely appointment of qualified members, and support from the state machinery. Strengthening these tribunals can significantly enhance the protection and utilization of Waqf properties across India.