Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > Fourth situation: unknown beginning, known end (broken at the beginning, continuous at the end)
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Updated on 06 October 2026 at 10:50 PM
This part belongs to the section: All parts.
The jurists disagreed when the waqf is broken at the beginning and continuous at the end, as if he endows for his slave, then for the needy; or for a church, then for the needy; or for himself (according to those who do not permit the waqf for oneself, who are the majority, as mentioned previously), then for the needy; or for his child when he has none, then for the needy; or for an undetermined people, then for the needy; or for Zayd, then for the poor, Zayd having refused the waqf (according to those who require acceptance): is this waqf void or valid?
The Shafi'is in the madhhab and the Hanbalis in one view said that the waqf is void; for the beginning is void, since diverting to it immediately is impossible: there is no rightful claimant nor valid beginning upon which to build; and the second is a branch of a void origin, thus void; like the waqf for a mosque to be built (al-Muhadhdhab, 1/441; al-Bayan, 8/70-71; Rawdat al-Talibin, 4/145-146; Mughni al-Muhtaj, 3/465; Nihayat al-Muhtaj, 5/429; Kanz al-Raghibin, 3/251; al-Najm al-Wahhaj, 5/485; al-Dibaj, 2/523-524; al-Mughni, 5/365).
The Hanafis, the Malikis, the Hanbalis in the madhhab and the Shafi'is in one view said that the waqf is valid.
The Malikis said: the waqf with a broken beginning, like for oneself, for a disobedience or for a dead person who does not benefit, then for the poor, is void for what cannot receive a waqf and valid when reaching it is possible, the breakage doing no harm; for the waqf is a kind of transfer in benefits or objects, which may be generalized or particularized, as in gifts and bequests (al-Dhakhira, 6/339; al-Fawa'id al-Dawani, 2/162; Hashiyat al-Dasuqi, 5/463; Sharh Mukhtasar Khalil, 7/84; Hashiyat al-Sawi, 9/159).
Ibn Qudama, may Allah have mercy on him, said: if the waqf is broken at the beginning, such as for one who cannot receive a waqf: oneself, the mother of one's child (umm walad), one's slave, a church or an unknown, and he did not devote after it what cannot receive a waqf, the waqf is void; likewise if he devoted its end to what cannot receive a waqf; for he failed one of the waqf's two conditions, as if he had endowed what cannot be endowed. If he devoted after it what can receive a waqf, such as for his slave then the needy, there are two views on its validity, based on dividing the transaction; al-Shafi'i has two views there, like these two. If we say it is valid, which is the qadi's view, and the waqf-incapable cannot be considered extinct, like a dead person, an unknown or churches, it is diverted immediately to one who can receive a waqf; for by validating the waqf while mentioning the incapable of waqf, we have in reality annulled it, validating being impossible while taking him into account.
If the incapable of waqf can be considered extinct, like the mother of one's child or a specific slave, two views: diverting it immediately to one who can receive a waqf, like the previous case, mentioned by Abu al-Khattab; or diverting it immediately to the channel of the broken waqf until the incapable of waqf dies out, then devoting it to one who can receive: this is the view mentioned by the qadi and Ibn Aqil; for the founder made it a waqf for the valid beneficiary only on condition of the incapable one's extinction, without which nothing is established; this distinguishes it from the one who cannot die out, whose consideration is impossible. Al-Shafi'i's companions have two views like these two (al-Mughni, 5/365; al-Kafi, 2/453).
Al-Bahuti, may Allah have mercy on him, said: the waqf broken at the beginning only, like for oneself, one's slave, then one's child then the poor, is diverted immediately to what follows: to his child straight away; according to what preceded, the presence of one who cannot receive a waqf is like his absence (Sharh Muntaha al-Iradat, 4/345-346; Kashshaf al-Qina, 4/307; see al-Sharh al-Kabir, 6/201; Sharh al-Zarkashi, 2/201; al-Mubdi', 5/327-328; al-Insaf, 6/34; Matalib Uli al-Nuha, 4/299).
Al-Shirazi, may Allah have mercy on him, said: if we say it is valid, the one whose extinction cannot be considered, like an unspecified man, is passed to what follows, which are the poor; for his extinction cannot be considered, and his ruling falls away. If he can be considered extinct, like the slave, there are three views: the immediate transfer to what follows; for the initial beneficiary, no valid waqf having been made for him, is like the non-existent; the second, which is the stated view: to the founder, then to his heir, until the beneficiary dies out, then it is devoted to what follows; for the condition of transition to the poor was not fulfilled, and the property remains his; the third: to the founder's relatives until the beneficiary dies out, then it is devoted to the poor; for it cannot be left with the founder, who removed the ownership, nor devoted to the poor, the condition of transition not being fulfilled: the founder's relatives are therefore more entitled. Do only their poor share, or do rich and poor share?
The two views already mentioned (al-Muhadhdhab, 1/442; see al-Bayan, 8/70-71; Rawdat al-Talibin, 4/145-146; Mughni al-Muhtaj, 3/465; Nihayat al-Muhtaj, 5/429; Kanz al-Raghibin, 3/251; al-Najm al-Wahhaj, 5/485; al-Dibaj, 2/523-524). Ibn Abidin, may Allah have mercy on him, said: note: from this it is known that the one broken at the beginning and the one broken in the middle are devoted to the poor (Hashiyat Ibn Abidin, 4/141). Abu Yusuf, may Allah have mercy on him, said: if he names a category that dies out, it is permitted, and afterwards it goes to the poor; if he does not name them, it is a perpetual waqf, even without mentioning perpetuation; the word "waqf" or "charity" indicating it: it is devoted to the named category for the duration of its existence, then to the poor, even if they are not named.
As if he says "I make it an endowed charity for Allah the Most High, forever, for the children of so-and-so and his children's children," without naming the poor or the needy; for devoting it to Allah is perpetuation, what is Allah's going to the needy, as if he had named them; the purpose being drawing near to Allah, which is achieved by a category that dies out as by one that does not, and afterwards it goes to the poor (Sharh Fath al-Qadir, 6/213; al-'Inaya, 8/331-332; al-Jawhara al-Nayyira, 4/101; al-Lubab, 1/621; al-Bahr al-Ra'iq, 5/204, 212; Ibn Abidin, 4/141).
The jurists disagreed when the waqf is continuous at the beginning and the end but broken in the middle, as if he endows for his children, then his slaves, or for an ambiguous man, then for the poor and needy; or if he says "I endow it for Zayd, then, ten years after his death, for the needy": is it valid or not? The majority of jurists, the Hanafis, the Malikis, the Shafi'is in the madhhab and the Hanbalis in the madhhab, said that the waqf is valid.
The Hanafis said: the waqf with a broken middle is valid and is devoted to the poor. Ibn Abidin, may Allah have mercy on him, said: I have seen no one of our madhhab say that the broken one is devoted to the founder's nearest; they said: to the poor (Hashiyat Ibn Abidin, 4/430-431; Tanqih al-Fatawa al-Hamidiyya, 2/394-395).
The Malikis said: the waqf with a broken middle, like for one's children, then a disobedience, then the poor, is void for what cannot receive a waqf and valid when reaching it is possible, the breakage doing no harm; for the waqf is a kind of transfer in benefits or objects, which may be generalized or particularized, as in gifts and bequests (al-Dhakhira, 6/339; al-Fawa'id al-Dawani, 2/162; Sharh Mukhtasar Khalil, 7/84; Hashiyat al-Sawi, 9/159). Al-Dasuqi, may Allah have mercy on him, said: in our madhhab, the waqf containing a breakage at its beginning, its end or its middle is void for what cannot receive a waqf, and valid for what can receive one, if a taking of possession occurs before the impediment reaching the founder; the breakage doing no harm (Hashiyat al-Dasuqi on al-Sharh al-Kabir, 5/463).
The Shafi'is said: if he says "I endow it for my children, then for a man among them, then for the poor," the madhhab is its validity; for the channel is present at the start and at the end; it is thus devoted, after his children, to the poor, not to the people nearest the founder; for the duration of the breakage is unknown. If he says "I endow it for my children, then for this slave himself, then for the poor," it is also with a broken middle; but, in this form, it is devoted, after his children, to the founder's relatives, as preceded in the one broken at the end (Rawdat al-Talibin, 4/145-146; Mughni al-Muhtaj, 3/465; Nihayat al-Muhtaj, 5/429; Kanz al-Raghibin, 3/251; al-Najm al-Wahhaj, 5/485; al-Dibaj, 2/524).
The Hanbalis said: if the waqf has two sound extremities and a broken middle, like one who endows for his child, then his slaves, then the needy, it is valid in the madhhab; and the broken middle is diverted immediately, after one who can receive a waqf, to what follows.
The principle in the waqf is that the beneficiary be known. If the category is unknown, such as a group or an unspecified man, or ambiguous, such as the waqf for one of these two men, the waqf is not valid according to the Hanafis, the Shafi'is and the Hanbalis; for the waqf is a transfer of ownership, invalid without designation like the gift; and ownership of the undetermined is not valid. Ibn al-Simnani al-Hanafi, may Allah have mercy on him, said: the waqf for unknown people is not valid, like sale (Rawdat al-Qudat, 2/794). Al-Shirazi said: the waqf for an unknown is not valid, such as the waqf for an unspecified man, or for whomever so-and-so chooses; for it is an immediate transfer, invalid for the unknown like sale and gift (al-Muhadhdhab, 1/441; Rawdat al-Talibin, 4/148).
Al-Mirdawi, may Allah have mercy on him, said: the waqf for an unknown, such as "a man" or "a mosque," is not valid without dispute; likewise it is not valid if ambiguous, such as one of these two men, according to the correct view of the madhhab, followed by the majority of the companions and decided by many of them. It has been said that it is valid, mentioned in al-Ri'aya as a possibility; and it has been said that it is valid if one holds that the waqf does not require acceptance, derived from the waqf of one of the two houses, a possibility mentioned in al-Talkhis; according to validity, the ambiguous is settled by drawing lots, said in al-Ri'ayatayn. If the founder says "I have endowed it" and falls silent, that has been discussed in detail under the fourth condition of the wording: the designation of the waqf's channel (al-Insaf, 7/20; see al-Muhadhdhab, 1/441; Rawdat al-Talibin, 4/148; Kashshaf al-Qina, 4/303; Sharh Muntaha al-Iradat, 4/341; Manar al-Sabil, 2/324).
Chapter on the waqf for children and offspring. The founder may endow for his children, or for his children and grandchildren, or for his offspring; this is permitted according to the majority of jurists. But they disagreed on some issues specific to the waqf for children: does the child to be born enter it? Is equality among them required?
Do the daughters' children enter it? The detail follows.
When the founder mentions a single generation in the waqf for children, like "I have made a waqf for my child" or "for my child, then for the needy," the jurists agree that his children existing at the time of the waqf alone are entitled to the waqf, including the embryo (this is the madhhab of the majority of jurists, as mentioned previously: the Hanafis, the Malikis, the Hanbalis in the madhhab, and the Shafi'is in one view; the Shafi'is in the madhhab say that the embryo does not enter; once born, he enters with them and receives only the revenue produced after his birth, not what was produced before; for before birth he is not called a "child," unless the founder named those present or mentioned their number, in which case he does not enter; al-Ruhaybani said that a child conceived for the founder, whose mother becomes pregnant after the waqf is issued, does not enter, mentioned in al-Ri'ayatayn, al-Hawi al-Saghir and al-Nazm, and decided in al-Tanqih; the author of al-Iqna' said the opposite: any child born to the founder after his waqf is entitled to the waqf like those present; the relied-upon view is that of the compiler, unless the founder says "I have made a waqf for my children and those who will be born to me," in which case those present at the time of the waqf and those born afterwards enter).
Whether the child is single or several, male, female or hermaphrodite; for the word "child" applies to the singular and the plural, to the male and the female, as the linguists said. They share equally if the founder prefers none of them; for he made it theirs, and the wording of sharing requires equality, like acknowledging property for them; like the children of the same mother in inheritance, whom Allah the Most High made sharers:
"they are then partners in the third"
Surah an-Nisa, 12
they equalized in it without any of them being preferred to another; and Ibn Qudama, may Allah have mercy on him, said: I know of no disagreement on this (al-Mughni, 5/360; see al-Is'af, p. 95-96; Sharh Fath al-Qadir, 6/242-243; al-Bahr al-Ra'iq, 5/239; al-Fatawa al-Hindiyya, 2/371; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/474; Sharh Mukhtasar Khalil, 7/91; Tahbir al-Mukhtasar, 4/653; al-Muhadhdhab, 1/444; Rawdat al-Talibin, 4/154-155; Jawahir al-'Uqud, 1/252; Mughni al-Muhtaj, 3/469-471; al-Iqna', 2/363; Nihayat al-Muhtaj, 5/433; Hashiyat Umayra, 3/256; al-Kafi, 2/457-458; al-Sharh al-Kabir, 6/214; Kashshaf al-Qina, 4/336-337; Sharh Muntaha al-Iradat, 4/367; Matalib Uli al-Nuha, 4/344-345; Manar al-Sabil, 2/337; Majmu al-Fatawa, 31/101-104).
To note: if the child is single, the majority of jurists, the Malikis, the Shafi'is and the Hanbalis, grant him the whole waqf; the Hanafis say that, if he says "I have made a waqf for my children" while he has only one child at the time the revenue exists, half the revenue is his and the other half for the poor; for the minimum of the plural is here two, as in the bequest (al-Is'af, p. 96; al-Fatawa al-Hindiyya, 2/374).
The scholars disagreed concerning the child born after the waqf: if he has a child after endowing for his children, is the latter entitled to the waqf? The majority of jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis in a view preferred by many, said that the child born after the waqf is entitled to the waqf like those present, following them.
The Hanbalis in the madhhab said that the child born after the waqf does not enter it (al-Insaf, 7/74; Kashshaf al-Qina, 4/336).
The place of grandchildren in the waqf for children. The jurists disagreed: if the founder says "I have made a waqf for my children," do the grandchildren enter the waqf and its entitlement?
The Hanafis, the Shafi'is according to the soundest view, and the qadi with his Hanbali companions said that the grandchildren do not enter the waqf if the founder says "I have made a waqf for my children" or "for my child"; whether they are the sons' children or the daughters' children; for the name "child" does not literally apply to them: of a person's grandchild it is said that he is not his child, but his child's child.
The Malikis, the Shafi'is against the soundest view and the Hanbalis in the madhhab said that only the son's children, even if lower, enter, not the daughters' children, for the saying of the Most High:
"Allah enjoins you concerning your children: for the male, a share like that of two females"
Surah an-Nisa, 11
The sons' children thus entered it, even if lower; and there is consensus that the daughters' children have no inheritance. Likewise, every place where Allah mentioned the child has the sons' children entering: the absolute statement of a human, without context, must be referred to the absolute statement of Allah the Most High and explained by what explains it. And his child's child is his child, according to the saying of the Most High "O children of Adam" and "O children of Israel," the saying of the Prophet: "Shoot, O children of Isma'il, for your father was an archer" (narrated by al-Bukhari, 2743), his saying: "We are the children of al-Nadr ibn Kinana" (narrated by Ibn Majah, 2612, and Ahmad, 21888; authentic hadith), all the tribes ascribing themselves to their ancestors, and his saying: "I am the son of Abd al-Muttalib" (narrated by Ibn Hibban in his Sahih, 5771; authentic hadith). This holds so long as he did not say "for my child of my loins," or "for my children closest to me"; if he says that, the grandchild does not enter without disagreement.
The daughters' children do not enter "my child" nor "my children" when he endows for them, as if he bequeaths to the children of Zayd or to his children: his sons' children enter it, not his daughters' children, nor the children of his sons' daughters, nor the daughters of his sons' sons; they have nothing in the waqf nor in the bequest; for they are of another man, excluded from the saying of the Most High "Allah enjoins you concerning your children," like every child mentioned in the Quran for inheritance or exclusion; the daughters' children ascribe to their fathers, according to the poet's verse: "Our sons are the sons of our sons, and our daughters carry theirs; they belong to the most distant men. Al-Marrudhi said: I asked Abu Abdillah (Ahmad) about a man who endowed an estate for his children, then the children died leaving pregnant women; he said: all that came from the sons, girls or boys, the estate is endowed for them; as for the daughters' children, they have nothing in it: they are of another man (al-Mughni, 5/354; Matalib Uli al-Nuha, 4/345-346).
A third view among the Shafi'is and the Hanbalis, chosen by Abu Bakr Ibn Hamid: the children enter without restriction, whether the sons' children or the daughters' children; for the daughters' children are his children, and theirs are his grandchildren; according to the saying of the Most High concerning Ibrahim, peace be upon him: "and of his descendants, Dawud," up to "and Isa," who was his daughter's child (Surah al-An'am, 84-85); and his saying: "this son of mine is a master," speaking of al-Hasan.
The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis, said: if the founder says "I have made a waqf for my children" while he has no child at the time of the waqf, but has grandchildren, the wording is referred to them; for the context exists and the accountable person's words are preserved from annulment: the son's child, in the absence of a child of the loins, takes the place of the child of the loins. In al-Is'af: if he has no child of his loins at the time of the waqf but a grandson, the revenue goes to him; none of the lower generations shares in it, for he takes the place of the child of the loins; and according to the apparent report, the daughters' children do not enter: Hilal took this. Al-Khassaf reported from Muhammad that the daughters' children enter it too; the correct view is the apparent report; for the daughters' children ascribe only to their fathers, not to the fathers of their mothers.
Al-Durr al-Mukhtar says: if the founder has no child of his loins at the time of the waqf, the grandson is exclusively entitled, even if a girl, to the exclusion of the lower generations, and to the exclusion of the daughters' children according to the correct view; if he adds "and my child's child only," it is restricted to those two; if he adds the third generation, it covers all his descendants. Ibn Abidin, may Allah have mercy on him, said: his saying "the grandson is exclusively entitled" means that none of the lower generations shares the revenue with him, and that the son's child, in the absence of one of the loins, takes the place of the child of the loins, for he ascribes to him.
In al-Khassaf: if he has no child of his loins nor a grandchild, but a great-grandson, the revenue goes to him and to the lower generations; the difference from the child of the loins is that, the latter being present, the lower ones do not enter; descending to three generations makes them like the clan and the tribe, as if he said "for the children of Abbas ibn Abd al-Muttalib": it applies to whoever ascribes to Abbas. End of summary. His saying "even if a girl": the word "child" includes her, as mentioned previously. His saying "according to the correct view": it is the apparent report, followed by Hilal; for the daughters' children ascribe to their fathers, not to the fathers of their mothers, unlike the son's child.
The Shafi'is said: if he says "I have made a waqf for my children" while he has only grandchildren, the wording is referred to them, through the context and preserving the accountable person's words from annulment; unless a child is born afterwards: it is then devoted to him alone, according to the most probable view; for the devotion to the grandchildren occurred only because of the absence of the reality that has now come to exist. It has been said: it is devoted to them along with him. Ibn Qudama, may Allah have mercy on him, said: in the presence of an indication toward one of the two carriers, it is devoted to it without disagreement: "for the children of so-and-so," who are a tribe with none of his own children: it is then devoted to the grandchildren without disagreement; likewise if he says "for my children" or "my child" without a child of his loins (al-Is'af, p. 96; Ibn Abidin, 4/468; al-Mughni, 5/355; Mughni al-Muhtaj, 3/471; al-Iqna', 2/363; Nihayat al-Muhtaj, 5/436; Kanz al-Raghibin, 3/257; al-Dibaj, 2/527).
The jurists disagreed: if the founder says "I have made a waqf for my child and my child's child," or "for my children and my children's children," is it restricted to the two generations, the third not entering, or does the third enter? And do they share the revenue without the child of the loins being preferred to the grandson, or does the child of the loins precede?
The Hanafis, the Shafi'is according to the soundest view and the Hanbalis in one of the two views said that they do not enter: if he says "for my child and my child's child," his great-grandchildren, who are the third generation, do not enter.
The Shafi'is in one view and the Hanbalis in one view said that they enter.
The detail will follow.
The Hanafis said: if he says "I have made a waqf for my child and my child's child" only, without adding, the child of the loins and his sons' children enter and share the revenue, without the child of the loins being preferred to the son's child; for he equalized them in the mention, without mentioning what indicates order; then, upon the extinction of the children and their children, the revenue is devoted to the poor, the beneficiary having died out; the third generation does not enter, the word "child" being singular.
If he adds the third generation, saying "for my child, my child's child and my grandchild's child," it covers all his descendants, devoted to his children as long as they propagate, not to the poor, as long as a single one of his children remains, even if lower; the nearest and the farthest are equal in it; unless he mentions what indicates order, saying "the nearest then the next," or "for my child, then my child's child," or "generation after generation": one then begins with what the founder began with; for mentioning the third generation removed the disparity, and the ruling attaches to ascription itself, present in the near and the far, unlike the second generation, whose intermediary is single. This ruling applies to the word "child" in the singular.
If he mentions "children" in the plural, saying "I have made a waqf for my children," all the generations enter, by the generality of the name; but the first generation is preferred; upon its extinction, the second; then all the generations share equally, near and far; and nothing is devoted to the poor as long as a single one of them remains, even if lower; for the name "children" embraces the whole, unlike the name "child" in the singular, which requires the mention of three generations for it to go to the descendants endlessly; the nearest and the farthest are equal in the revenue, which is divided among them by headcount, the female like the male (al-Ikhtiyar, 3/55-56; Ibn Abidin, 4/468-469; Ghamz 'Uyun al-Basa'ir, 2/150; al-Is'af, p. 98; Durrar al-Hukam, 6/146-147).
The Shafi'is said: if he endows for his children and grandchildren, there are three views on the entry of his great-grandchildren: the soundest: they do not enter; the second: they enter; the third: the sons' children enter, not the daughters', according to the previous disagreement over "I have made a waqf for my children. If he says "I have made a waqf for my children and my children's children," it requires equality in the principle of giving and in amount among all, namely all the children and their children, males and females; for the conjunction aims at absolute plurality, not order, as is correct among the usulis and as reported from the consensus of the grammarians. If he joins them by the conjunction and then says "whoever of them dies, his share is for his child," and one of them dies, his child is exclusively entitled to his share, and the rest share the remainder.
Likewise, equality among all is required if he says "for my children and their children as long as they propagate," meaning the grandchildren, as if he said "for them and their descendants as long as they propagate. Likewise if he says "generation after generation" or "descendant after descendant": equality among all is required in that case too, the lower generation sharing with the higher, according to the relied-upon view. The majority said that "generation after generation" indicates order, like "the highest then the highest"; al-Subki graded it sound, following Ibn Yunus: order then applies only between the two generations; upon the second's extinction, one passes to another channel if the founder mentioned it, otherwise it is one broken at the end.
If he says "I have made a waqf for my children, then my children's children, then their children as long as they propagate," or "I have made a waqf for my children and my children's children, the highest then the highest among them, or the first then the first, or the nearest then the nearest," order applies to what is mentioned; through the "then" in the first, and through his explicit statement in the second: no generation takes while a nearer generation still has someone. If he uses "then" for the second generation and the conjunction for what follows it, as if saying "I have made a waqf for my children, then my children's children and their children's children," order applies to the second generation alone, acting on the "then" and the conjunction; if he reverses it, using the conjunction for the second generation and the "then" for what follows, order applies to the latter against it (al-Hawi al-Kabir, 7/528; Rawdat al-Talibin, 4/153-155; Mughni al-Muhtaj, 3/469-471; Nihayat al-Muhtaj, 5/433-435; Kanz al-Raghibin, 3/254-255; al-Najm al-Wahhaj, 5/493-494; al-Dibaj, 2/526-527).
As for the Hanbalis, they disagreed over "I have made a waqf for my child and my child's child": does the third generation enter? Two views: it does not include it, nor what follows it; and if he says "for my child, my child's child and my grandchild's child," three generations enter and no more; or they enter, but are entitled only after their fathers, in order, according to the correct view of the madhhab, following his saying "generation after generation" or "the nearest then the nearest"; it has been said that they are entitled together with them.
If he orders, saying "I have endowed this for my child and my child's child as long as they propagate and succeed one another, the highest then the highest, or the nearest then the nearest, or the first then the first, or the first generation, then the second, or for my children, then my children's children, or for my children and, if they die out, for my children's children," all of this is ordered: it proceeds according to what he stipulated; the second generation receives nothing until the first has entirely died out, even if a single one of the first remains: all goes to him; for the waqf was established by his saying, and the purport of his words is followed.
If he says "for my children and their children as long as they succeed and propagate, such that whoever of them dies leaving a child, what ran for him runs for his child," that indicates order; for sharing would require equality, and if we gave the son's son his father's share in addition to his father's share, he would have two shares against one for the others, which contradicts equality; and it amounts to preferring the son's son over the son, against the founder's apparent intention. Order being established, it applies between every father and his child: whoever dies leaving a child, his share passes to that child, whether someone of the first generation remains or not.
If he orders part without the other, saying "for my child and my child's child, then their children," or "for my children, then for my children and their children as long as they propagate," or "for my children and my children's children, then their children and their children's children as long as they propagate," it is as he said: those joined by the conjunction, which requires plurality and sharing, share, and those he orders by the order particle are ordered: in the first issue, the child and the grandchild share, then, upon their extinction, what follows; in the second, the child is exclusively entitled, then, upon their extinction, it becomes shared; in the third, the first two generations alone share, then, upon their extinction, those after them share.
If he says "I have made a waqf for my children, then my children's children, such that whoever of my children dies leaving a child, his share is for his child; or for his brothers, or for his child's child, or for his brother's child, or for his sisters, or for his sisters' children," it proceeds as he stipulated (al-Mughni, 5/355-356; al-Sharh al-Kabir, 6/216; Kashshaf al-Qina, 4/337-339; Sharh Muntaha al-Iradat, 4/368-370).
The jurists disagreed: if the founder says "I have made a waqf for my child and my child's child," does the daughter's child enter?
The Hanafis according to the correct view, the Malikis in one view and the Shafi'is said that the daughters' children enter. In al-Is'af: if he says "for my child and my child's child" without adding, the revenue is shared between his children and his son's children; for he equalized them in the mention. Does the daughter's child enter?
Hilal said: he enters. If he says "for my child and my child's child, the males," Hilal said: the males of the sons' children and of the daughters' children enter. Ali al-Razi said: if he endows for his child, then his child's child, the males and females of the son's children enter; upon their extinction, it goes to the founder's son's children, not to his daughter's; and if he says "for my children and their children," it applies to all: the son's child and the daughter's child enter. The correct view is that of Hilal, may Allah have mercy on him; for the name "a child's child" embraces the sons' children as it embraces the daughters' children; in al-Siyar: when the belligerents say "guarantee us our children," the sons' children and the daughters' children enter.
Shams al-A'imma al-Sarakhsi, may Allah have mercy on him, said: a child's child is the name of one whom his child begot; and his daughter is his child: the one she begot is, literally, his child's child; unlike "for my child," where the daughter's child does not enter the waqf according to the apparent report; for the name "child" covers the child of his loins, and covers the son's child only by customary attribution (al-Is'af, p. 97; al-Bahr al-Ra'iq, 5/239; Sharh Fath al-Qadir, 6/242-243; al-Fatawa al-Hindiyya, 2/371; Ibn Abidin, 4/464; Durrar al-Hukam, 6/147).
The Shafi'is said: if he endows for his children and grandchildren, the sons' children and the daughters' children enter; the proof that the daughters' children are among the best of his grandchildren is that the daughters, being his children, make their children his grandchildren; and it is reported that the Prophet said of al-Hasan: "this son of mine is a master," naming him a son. And according to the saying of the Most High concerning Ibrahim, peace be upon him: "and of his descendants, Dawud," up to "and Isa," who was his daughter's child (Surah al-An'am, 84-85). If he says "for whoever ascribes to me among my children's children," the daughters' children do not enter according to the correct view (al-Hawi al-Kabir, 7/528; Rawdat al-Talibin, 4/155; al-Muhadhdhab, 1/444; Mughni al-Muhtaj, 3/471; al-Iqna', 2/363; Nihayat al-Muhtaj, 5/436; Kanz al-Raghibin, 3/257; al-Dibaj, 2/527; al-Najm al-Wahhaj, 5/494-495).
The Malikis according to the relied-upon view and the Hanbalis said that the daughters' children do not enter the waqf when the founder says "I have made a waqf for my children and their children.
The Malikis said: if the founder endows for "my descendants, my posterity, my child, my child's child, my grandchildren, my sons and my sons' sons," the daughters' children enter none of these eight wordings according to the correct view. Ibn Rushd, may Allah have mercy on him, said: no scholar distinguishes, in meaning, between the words "posterity" and "child. If he endows "for my child or my children" without adding, the confinement is for his children, males and females, and for his sons' children, males, not females; the daughters' children do not enter it according to the madhhab of Malik, by consensus on the absence of inheritance for the daughters' children.
If he endows "for my child and my child's child, or my children and my children's children," a group of the masters said that the founder's daughters' children enter according to the madhhab of Malik, by the apparent wording; for the word "child" includes the male and the female; there is no difference between saying "for my child and my child's child" and saying "for my child, their males and their females, and all their children," as to what the ruling requires. Practice among us has proceeded on this, and our master the jurist Abu Ja'far Ibn Razq, may Allah have mercy on him, gave fatwa accordingly.
It has been reported from Malik, may Allah have mercy on him, concerning one who confines for his child and his child's child, that the daughters' children do not enter: one may understand by "daughters' children" the children of his sons' daughters, not the founder's daughters; one may also understand that he did not address the case where the founder explicitly says "for my child and my child's child," but the confinement that is upon the child and the child's child according to the founder's saying "I have confined it for my child only. Some interpreted that he said so because the people of his era excluded daughters from their confinements: he therefore referred the matter to their usage, without considering the founder's wording "for my child and my child's child" and what it truly requires by its generality. If the report is carried on its apparent meaning, namely that the daughters' children do not enter, whether the founder's daughters or his sons' daughters, with the founder explicitly stating that he confined it for his child and his child's child, two reasons support it.
The first: that the daughters' children, even though his grandchildren, do not ascribe to him nor inherit from him; it was thus understood that he intended, among his grandchildren, those who ascribe to him and inherit from him, not those who neither ascribe nor inherit; for inheritance and lineage are the meaning for which the child is desired and encouraged; Allah said:
"I fear, after me, my dependents; and my wife is barren. So grant me, from Yourself, a descendant who will inherit me and inherit from the family of Ya'qub"
Surah Maryam, 5-6
and the wording "a child's child," taken unrestrictively, applies in his view only to the one whose lineage returns to him. The second: that the daughter's child, even though a grandchild, is known as such only by a small number of people; most believe that the name "child" applies only to the male, not the female; asked about his children while having only daughters, he answers "I have no children, I have a daughter." The founder's wording must therefore be carried to the purposes people are known to intend by their words, even if that contradicts the generality of the Arabic language; do you not see the one who swears not to eat meat or eggs, without fish and fish eggs breaking his oath, even though that is meat in the language (al-Muqaddimat al-Mumahhadat, 2/427-428; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/482-483; al-Taj wa-l-Iklil, 4/586; Mawahib al-Jalil, 7/506; Sharh Mukhtasar Khalil, 7/96; Tahbir al-Mukhtasar, 4/662).
The Hanbalis said: the daughters' children do not enter the waqf for his child, his children or his offspring and their like; for they are excluded from the saying of the Most High "Allah enjoins you concerning your children" (Surah an-Nisa, 11); and they ascribe only to their father's tribe, not to their mother's; Allah the Most High said: "call them by their fathers" (Surah al-Ahzab, 5); and the poet said: "Our sons are the sons of our sons, and our daughters carry theirs; they belong to the most distant men. As for the Prophet's saying "this son of mine is a master" (narrated by al-Bukhari, 2704) and its like, the attribution of Fatima's children to him is a peculiarity of his.
They enter only by explicit wording, like his saying "I have made a waqf for my child and their children, on condition that the daughters' children have one share and the males' children two," and the like; or by a context, like "whoever of them dies leaving a child, his share is for his child," or "I have endowed for my child so-and-so, so-and-so and so-and-so, and their children," or "when the land holds no one left who ascribes to me, through father or mother, it will be for the needy," or "for the first generation of my children, then the second and the third, and their children," the first generation being daughters; and their like, everything indicating the entry of the daughters' children: they enter then without disagreement.
If the founder restricts by what requires the exclusion of the daughters' children, saying "I have made a waqf for my children of my loins," or "for whoever ascribes to me," they do not enter, that is, the daughters' children, without disagreement (Kashshaf al-Qina, 4/341; Sharh Muntaha al-Iradat, 4/368; Matalib Uli al-Nuha, 4/347; Manar al-Sabil, 2/337-338; al-Rawd al-Murbi', 2/176).