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Q: 10 What kind of PROPERTIES can be made subject of WAQF. When can MUTAWALI be REMOVED? Is the office of MUTAWALI is Hereditary?
A: SUNNI LAW: According to the Fatwa-I-Alamgiri, the Hanafi Law includes the following as subjects of a valid waqf:
Immovable property, accessories to it, beasts of burden, arms, Quran other books, and other articles as are customarily made the subject the wakf, but not things without destruction of the subject. In this connection Syed Ameer Ali beautifully observers:
“The doubt, which one or two of the ancient Hanafi doctors had expressed as to the validity of the waqf of certain kinds of movable property in contradistinction to certain other things, was the outcome of primitive and archaic conditions of society, and was founded on the notion that as perpetuity was essential to the validity of waqf, it could hardly be secured by the dedication of movable things generally. But as the Muslim communities progressed in material civilization and commerce developed, it came to universally recognized that the waqf of everything, to which practice appertains, which forms the subject among mankind or which it is customary in any particular locality to do so, it is valid. The observant reader will not fail to see that ‘custom’ or ‘usage’ (urf) is an important factor in Islamic Law. Like Istehsan (liberal interpretation) is expresses the spirit of development. It enables communities to progress and develop in spirit of the strict letter of the law”.
SHIA AND SHAFEI LAWS: Under the Shia and the Shafei Laws, land and everything that cannot be consumed by use, and everything lawfully saleable, may form a valid subject of waqf.
MUTAWALLISHIP WHETHER HEREDITARY: The office of Mutawalli is not hereditary. If, however, there is a custom to the contrary, hereditary succession would be allowed, but the customs has to be proved strictly. Moreover, a Mutawalli could neither sell nor transfer his office.
REMOVAL OF MUTAWALLI: the court will remove a Mutawalli who:
1. Denies the Waqf character of the property and sets up an adverse title to it in himself.
2. With sufficient funds in his hands neglects to repair the Waqf premises and allows them to fall into disrepair.
3. Knowingly and intentionally causes damage or loss to the Waqf property or misdeals with it.
4. Is insolvent.