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Q 6: What are ESSENTIALS of Valid WAQF? Who can Appoint “MUTAWALI” ?
A: ESSENTIALS OF VALID WAQF: Essentials of valid waqf may be briefly summarized as follows:
1. There must be a clear intention on the part of waqif to create the waqf.
2. Wakif must declare his intention, either orally or in writing.
3. Wakif must be the owner of the property to be dedicated as wakf.
4. The wakf must be perpetual; although, no express mention of perpetuity of wakf is essential and it is presumed, nevertheless if wakfnama says that the wakf is for, say, 50 years, it is invalid.
5. The objects of wakf should not be in conflict with the Islamic principles.
6. the wakif must be of sound mind and major, and a Muslim. However, wakfs by non-Muslims are recognized under certain conditions.
7. Wakf must not be contingent or conditional.
MUTAWALLI: Wakf property does not vest in the mutawalli but in god. He is only a Manager or Superintendent of the property.
COMPETENCE: Anyone, of any faith, female or male, who is competent to administer property may become mutawalli. But where religious duties are involved, a person of another religion or a woman may be disqualified. Nevertheless, a woman may be allowed to hold this office provided her duties could be separated from the religious duties and the latter could be performed by a substitute. But, for example, where the duties of mutawalli include imamat (leading the prayers), a woman is wholly disqualified from this office.
APPOINTMENT OF MUTAWALLI: A mutawalli may be appointed by:
1. The Wakif himself
2. His executor
3. The mutawalli
4. The court
1. BY THE ‘WAKIF’ HIMSELF: The Wakif has a right to reserve himself, and to appoint a mutawalli during his lifetime whenever he likes.
2. BY HIS EXECUTOR: The power of appointing the mutawalli primarily rests with the wakif, and in his absence, it rests with his executor.
3. BY MUTAWALLI : A mutawalli can appoint his successor under very restricted conditions, which are as follows:
a. Wakif and his executor are both dead
b. Wakf deed is silent on the point of succession of mutawalliship.
c. There is no positive custom regarding such devolution
d. The mutawalli is on the death-bed, or incapacitated from discharging his duties.
e. The wakf-deed authorizes him to this effect.
4. BY THE COURT: It was held by the various High Courts that when a vacancy occurs and there is none to take the office, or when the mutawalliship devolves upon a minor, the court has the power to appoint a mutawalli.