General principles regarding the administration and management of the waqf under the Muslim Personal Law
Under the Muslim personal law. a Mohammedan is entitled to dispose of his property, movable of immovable by of a waqf. Waqf means and includes any permanent dedication by a person professing the Muslim faith of any property for any purpose recognized by Islam as religious, pious or charitable. It is no doubf a trust. After the creation of the waqf. the title of such property vests absolutely in Allah or in the charities created in His name. A mutawalli or mutawallis are appointed to carry out the waqf. The position of a mutawalli is not that of an ostensible owner but a mere manager. He is obliged to do only that what he was instructed for in the waqf-deed by way of administration and management of the waqf. No action of such mutawalli beyond the authority as given in the waqf-deed or which are intended to result in the waste or loss of the waqf property will be valid or bing the waqf.
Haftzuddin Ahmed Vs. M Aslam Miah & Ors. 10 BLT(HCD)-399.
Section-33, 56, 57
Principle regarding transfer— The power of the Administrator under Section 33 to transfer a part of the waqf property is made limited and conditional. First, he must be satisfied that sueh transfer is necessary for improvement and benefit of the waqf. Then, he will have to obtain a sanction of the Government. But Section 56 is not generally intended to empower a mutawalli to transfer any part of the waqf property by way of sale, mortgage or exchange, or by lease for more than five years. That is, he can only lease out for a period of five years only. In case of an absolute transfer, no sueh transfer could be valid without prior sanction of the Administrator. Again the proviso warns that even sanction cannot validate a transfer, which is in contravention of a law or otherwise invalid. So, the sanction is not sacrosanct. Even a transfer with sanction may not be valid either for contravention of the law or when the sanction itself was not valid. Moreover, we could not find any reason for not to read the conditions or limitations as provided in Section 33 that before granting sanction the Administrator must be satisfied that such transfer was necessary for the improvement and benefit of the waqf in Section 33 for a transfer by a mutawalli in Section 56 and/or granting sanction by the Administrator in Section 57. Underlining implied limitation must not also be forgotten that the law was never interded to validate a transfer even with sanction, which ultimately results in injury, waste or loss of the waqf.
Hafizuddin Ahmed Vs. M. Aslam Miah & Ors 10 BLT (HCD)-399.