What occurs if one son swears the oath, but his two brothers abstain (Nukul), and the swearing son later dies?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
If the swearing son dies after his brothers have also died (or abstained completely), his share transfers to his children unanimously. If he dies while his two brothers are alive, there are three opinions: one view holds his share transfers to his brothers because the second generation cannot claim anything while a member of the first generation remains. A second view states it transfers to his children because the abstaining brothers forfeited their right, making them akin to non-existence. A third view dictates it transfers to the nearest male agnate (Asabah) of the dedicator until the two living brothers die, whereupon it reverts to the second generation.
Supporting text
The first opinion is the soundest, as the abstaining brothers did not forfeit their rights but merely failed to provide proof. If the parents had admitted the Waqf, it would have been established without an oath. Since the second generation has made an admission (through the swearing son), their right must be affirmed. If the second generation members are minors when the admission is made, the oath of the swearing son, supported by the original evidence, suffices for the transfer to the brothers, mirroring how it suffices for the second generation after the first generation's extinction.