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Unit-4
Q. Who is mutawalli ? point out the grounds on which a
mutawalli may be removed from his office by the waqf board .
Ans:-
Who is a Mutawalli?
A Mutawalli is the manager or caretaker of a Waqf. While the ownership of the waqf property vests in God (Allah),
the Mutawalli is appointed to administer and manage the waqf for its intended religious, pious, or charitable
purpose.
Role and Functions of a Mutawalli:
Managing waqf property.
Disbursing income for the purposes specified in the waqf.
Maintaining accounts and records.
Protecting waqf property from misuse or encroachment.
Acting as a trustee but not the owner of the property.
Grounds for Removal of Mutawalli by the Waqf Board (under Waqf Act, 1995):
Under Section 64 of the Waqf Act, 1995, the State Waqf Board may remove a Mutawalli on the following grounds:
1. Mismanagement or Breach of Trust
o If the Mutawalli misuses waqf funds or acts against the interests of the waqf.
2. Incompetence or Misconduct
o Includes incapacity to manage, dishonesty, or inappropriate behavior.
3. Failure to Perform Duties
o If the Mutawalli neglects or fails to carry out his responsibilities under the waqf deed or the Act.
4. Conviction for a Criminal Offence
o If convicted of a crime involving moral turpitude.
5. Alienation or Unauthorized Use of Waqf Property
o Selling, leasing, or transferring waqf property without legal authority or Board approval.
6. Failure to Pay Contribution
o If the Mutawalli fails to pay the waqf’s contribution to the Board as required under law.
7. Failure to Furnish Accounts or Reports
o Not submitting financial statements, audit reports, or other required documents.
8. Mental or Physical Incapacity
o If found unfit to manage the waqf due to health reasons.
9. Acting Against the Interests of the Waqf
o Any action that harms the waqf’s religious, charitable, or legal interests.
Procedure for Removal:
The Mutawalli must be given a reasonable opportunity of being heard.
The order must be passed in writing with reasons.
The removed Mutawalli has a right to appeal.
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Relevant Case Laws:
1. Ali Ahmad v. Ghulam Ahmad (AIR 1932 All 225)
o The court held that a Mutawalli can be removed if he acts against the interests of the waqf or
fails in his duty.
2. Md. Ismail v. Thakur Sabir Ali (AIR 1962 SC 384)
o The Supreme Court held that the Mutawalli is merely a manager and does not own the waqf
property. He must act in strict conformity with the purpose of the waqf.
3. Syed Asrar Ahmed v. State of Bihar (AIR 2004 Pat 32)
o A Mutawalli was removed for failure to maintain accounts and misappropriation of funds.
The court upheld the Waqf Board’s action.
4. A. Gaffoor v. State of Tamil Nadu (AIR 1995 Mad 251)
o The Madras High Court reiterated that a Mutawalli is liable to be removed for gross negligence
or misuse of waqf property.
Conclusion:
A Mutawalli holds a position of trust. The Waqf Board has legal authority to remove him if he fails in his duties,
misuses property, or acts contrary to the object of the waqf. Courts have consistently upheld the removal of
Mutawallis on these statutory grounds to protect waqf assets and ensure they serve their intended religious or
charitable purposes.
Q.what is pre emption ? discuss the various kinds of pre emtion . write a note on the
constitutional validity of pre emption. along with case laws
Ans:- ✅ What is Pre-emption (Shufa)?
Pre-emption (Arabic: Shufa) is a right under Muslim law that allows a co-owner, participator in amenities, or
neighbor to purchase immovable property sold to a third party, by stepping into the buyer's shoes and matching the
purchase price.
🔹 It aims to prevent the introduction of a stranger into close-knit property ownership or neighborhoods, thereby
avoiding inconvenience or potential harm.
Definition:
Pre-emption is the right of a person to acquire immovable property in preference to others, particularly when the
property is sold to a stranger, by paying the same price.
✅ Kinds of Pre-emption in Muslim Law:
Muslim jurists recognize three types of pre-emption, in a hierarchical order of priority:
1. Shufa-i-Shareek (Right of Co-owner or Co-sharer):
Applies when the pre-emptor is a co-owner of the property.
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He has the strongest right to pre-empt if another co-owner sells his share to an outsider.
🟢 Example: A and B own a house jointly. B sells his share to C (a stranger). A has the first right to buy B’s share.
2. Shufa-i-Khalit (Right of Participation in Amenities):
The right of a person who shares amenities or easements, like common access paths, water resources, or
courtyards.
🟢 Example: A owns a house that shares a water well and private road with B’s house. If B sells his house, A can
claim the right of pre-emption.
3. Shufa-i-Jar (Right of Neighbour):
The weakest right, available to an adjacent neighbor who has neither co-ownership nor shared amenities,
but only geographical proximity.
🟢 Note: This kind of pre-emption has been held unconstitutional by Indian courts (see below).
✅ Essential Conditions for Exercising Pre-emption:
1. Sale must be completed – right arises only when a valid sale is made to a stranger.
2. Timely Demand (Talab):
o Talab-i-Muwathibat – Immediate declaration of intention to pre-empt on hearing of the sale.
o Talab-i-Ishhad – Formal declaration in presence of witnesses.
o Talab-i-Tamlik – Filing of suit to enforce the right.
3. Property must be immovable (land, building, etc.)
✅ Constitutional Validity of Pre-emption in India:
The right of pre-emption has been subject to constitutional scrutiny, particularly under:
Article 14 – Right to Equality
Article 19(1)(f) – Right to Property (before its repeal in 1978)
⚖️ Landmark Case Laws:
✅ 1. Bishan Singh v. Khazan Singh
📚 AIR 1958 SC 838
The Supreme Court upheld pre-emption by co-sharers and participants in amenities as valid
classifications.
However, it ruled that pre-emption solely based on neighborhood (Shufa-i-Jar) is unreasonable and
violates Article 14.
✅ 2. Bhau Ram v. Baij Nath Singh
📚 AIR 1962 SC 1476
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The court struck down pre-emption based solely on neighborhood as discriminatory and without a rational
basis.
✅ 3. Sant Ram v. Labh Singh
📚 AIR 1965 SC 314
The court reiterated that personal law-based rights like pre-emption must pass the test of reasonable
classification under Article 14.
✅ Present Legal Position:
Pre-emption by co-owners and sharers in amenities is constitutionally valid.
Pre-emption based merely on being a neighbor is unconstitutional and unenforceable under Indian law.
📝 Conclusion:
Pre-emption is a protective right under Muslim law, rooted in the principles of neighborhood harmony and
community interests. However, in modern constitutional contexts, only those forms of pre-emption that serve a
reasonable and justifiable purpose (like co-ownership or shared usage) are upheld. Rights based only on proximity
have been struck down as unconstitutional.
