Surrender of tenancy is not a transfer under the Partition Act, so Section 4 cannot block partition rights.

Section 4 of the Partition Act, 1893 applies only where a share in a dwelling house of an undivided family is transferred to a non-member. A surrender of a lease was treated as distinct from a transfer, because surrender merely determines the tenant's lesser estate by merger and does not operate as a conveyance of title in the ordinary sense. As the tenancy was non-transferable and the surrender was valid, it could not attract Section 4. The original partition decree was restored and the remand order was set aside.

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Issues: Whether the surrender of an undivided share by tenants constituted a transfer within Section 4 of the Partition Act, 1893 so as to permit the remaining member of the undivided family to buy the transferee's share and resist partition.

Analysis: Section 4 of the Partition Act applies only where a share of a dwelling house belonging to an undivided family is transferred to a person who is not a member of that family. The expression "transfer" was construed in its legal sense with reference to the Transfer of Property Act, 1882. A surrender of a lease was treated as distinct from a transfer, since surrender merely determines the tenant's lesser estate by merger and does not operate as a conveyance of title in the ordinary sense. As the tenancy was non-transferable and the surrender was valid as such, it could not be treated as a transfer within Section 4.

Conclusion: The surrender was not a transfer within Section 4 of the Partition Act, 1893, and that section had no application; the decree of the trial court was restored in favour of the appellants.

Final Conclusion: The appeal succeeded, the remand order was set aside, and the original decree for partition stood restored.

Ratio Decidendi: A valid surrender of a tenancy interest is not a transfer of property within Section 4 of the Partition Act, 1893 unless it operates as a conveyance of title to a transferee.

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