What is the ruling if the settlor specifies continuity among descendants with a clause suggesting the share of a deceased descendant passes to his child?

General Chapter

Al-Mughni

Book of Endowments (Awqaf) and Donations

Book 27 · Issue 2 · Bab 1

Open in Qurani

Primary text

If the settlor states the endowment is 'upon my children, and their children as they succeed and propagate, on the condition that whoever among them dies, what was flowing to him shall flow to his child,' this phrasing indicates an order of succession (tartib). If the intent were partnership (tashrik), it would imply equality (taswiyah). Granting the grandchild the father's share, and then giving him that share upon the father's death, would result in the grandchild receiving two shares while others might receive one, which contradicts equality. Furthermore, this structure could lead to favoring the son's children over the son, which is contrary to the apparent intent of the settlor. Therefore, succession is established, meaning the entitlement transfers to the next generation (the children) immediately upon the death of the parent, regardless of whether any members remain in the preceding generation.