Waqf trustee (mutawalli)

The mutawalli was the person appointed to run a waqf, a charitable endowment, according to the founder's deed, the law and the regulations. Appointment is by the founder's will; where the founder named no one, the judge appoints. The trustee keeps the endowment's property and buildings in repair, rents them at market value, pays the staff and keeps the accounts. He receives a set pay and may be removed for embezzlement or neglect. ¹

The word means one who looks after another's affair. In the entry's technical sense it names the person charged with running a waqf under the founder's deed and the law. The authority is velayet and the appointment tevliyet; in Ottoman use the word for the work is usually tevliyet. In some countries the trustee is also called kayyim, mutakallim 'ala al-waqf, or nazir, though in the Ottoman sense a nazir was the overseer of the trustee. ¹

The founder's will decides the trustee. Where it does not, the judge decides. A trustee chosen by the founder is a meşrut trustee, and one chosen by the judge a mansup trustee. If the founder names no trustee, he may run the waqf himself, or name another; if he is dead and has appointed an executor for his will, the executor is taken as trustee unless the will says otherwise. The Hanafi view is that where a qualified relative of the founder exists, the founder should choose him over outsiders. Jurists agree that the founder has full authority to appoint. ¹

The 1936 Waqfs Regulation forbade a trusteeship to be held jointly or in shares. A registration trustee may be named to complete the registration of a waqf, and his authority ends when registration is complete. ¹

In the Ottoman state the trustee's place, when it fell vacant, was first filled by a judge. After the Tanzimat, sultans' decrees (berat) were issued to appoint trustees as alms appointments. The appointment of a deputy trustee (kaimmakam-i mutevelli) was made by judges authorised by the sultan. The first administrative body empowered to appoint such a deputy was the Haremeyn inspectorate, set up in 995 AH (1586). Mahmud I's firman of 1143 AH (1731) required the inspector's knowledge before any trustee was appointed for the two holy cities' endowments. In 1188 AH (1775) Abdulhamid I set up an office for the trustees of the Hamidiye endowments. The Evkaf-i Humayun inspectorate, set up in 1247 AH (1831), was the only body that could appoint a deputy trustee for Istanbul and its surroundings. In the provinces the sharia courts kept this power. ¹

In the Turkish Republic the waqfs placed under the state (mazbut) are run by the General Directorate of Foundations, which acts as deputy trustee. The Foundations Council, whose opinion is sought on major matters, has the status of a deputy of the nazir. About 334 attached endowments (mülhak) still exist, and their trusteeships are filled as they fall vacant by the General Directorate, from among those with the right of trusteeship, through a commission, under Foundations Law no. 2762 and the Regulation of 1936. ¹

A trustee must be of age and sane, just and trustworthy, and have the knowledge and experience to run the work. There is no difference between men and women. The Hanafi view does not require him to be a Muslim. A trustee who is not qualified cannot be appointed, and one appointed must be removed. One person may run more than one waqf, but the trusteeship and the oversight (nazir) cannot be held by the same person, because one person cannot both oversee and be overseen. ¹

The trustee runs the waqf in person, though he may appoint a deputy or resign. Where he is a minor, abroad, incapable, or needs to borrow from the endowment, the judge may appoint a deputy to represent the waqf. He acts on his own in the upkeep of the buildings and the appointment of staff, the market-value rent of the property, the collection of revenue, the keeping of accounts, and the yearly returns. He may not mortgage the waqf's property, give it away, let it be used free, lend without security, divide it, or claim ownership of it. A trustee who does this is liable for the loss, even if his deputy did it. Borrowing, selling the unproductive property, raising the pay of staff, or deciding matters the deed does not cover need the judge's permission. ¹

A trustee cannot be removed until his embezzlement is proved. Removal follows renting the waqf's property below market value, claiming ownership of it, using its income for his own affairs to build wealth against the terms, doing acts that require the judge's or the sultan's permission without asking, dissolute conduct, or neglect of the waqf's property and services. If a trustee is insane for more than a year, the office ends, though a trustee appointed under the founder's condition regains it when he recovers. ¹

The trustee may take pay for his work and responsibility. The entry cites the sayings and practice of Umar and Ali, who allowed a trustee a reasonable benefit from the income, on condition that he did not take the waqf as his source of income. The pay is set by the founder or by the judge who makes the appointment, and must follow the market rate for such work. In the Ottoman period the trusteeship was a respected social position, because it gave both the satisfaction of serving a continuing charity and a fixed income. ¹

The trustee answers to the nazir, who oversees him, and the nazir answers to the judge, who acts under the rules of sharia and the powers the sultan's law gave him. The trustee must give account for each period of his office, and a clause in the deed that forbids the audit is disregarded. The judge may compel an audit if needed, but he may not reopen a settled account without serious reason and doubt. In the Republic the General Directorate checks and approves the accounts of attached endowments. ¹

• TDV İslâm Ansiklopedisi, "MÜTEVELLİ", vol. 32, Nazif Öztürk, pp. 217–220, Istanbul 2006. ¹